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PROCEEDINGS 






HIGH COURT OF IMPEACHIEIT, 



IN THE CASE OF 



THE PEOPLE OF THE STATE OF TENNESSEE, 



vs. 



THOMAS N. FRAZIER, JUDGE, ETC. 



BEGUN AND HELD AT NASHVILLE, TENNESSEE, 
MONDAY, MAY 11, 1867. 



NASHVILLE : 

S. C. MERCER, PRINTER TO THE STATE. 

1867. 



/ 



HIGH COURT OF IMPEACHMENT. 

TENNESSEE SENATE CHAMBER. 



THE PEOPLE OF TENNESSEE,) 

vs. [ IMPEA CEMENT. 

THOMAS N. FRAZIER, Judge, etc. 3 



MONDAY, MARCH 11, 1867. 

In compliance with Senate Resolution, No. 29, which is in words 
and figures as follows, to-wit: 

[''Resolved by the Senate, That immediately after the adjournment 
of the General Assembly, sme die, the Senate will form itself into a 
Court of Impeachment, for the trial of the Impeachment Case, in 
which the State of Tennessee is Plaintiff, and Thomas N. Frazier, 
Judg:e of the Criminal Court of Davidson County, is Defendant. 

''Resolved further. That a Message be sent to tlie House of Repre- 
sentatives, notifying it, that immediately after the adjournment of 
the General Assembly, sine die, viz: on the 11th of March, 1867, 
the Senate will, as a Court of Impeachment, proceed to fix the pre- 
liminaries, for the trial of Judge Frazier, upon Impeachment made 
by the House of Representatives."] 

Adopted by the Senate on the 4th day of March, 1867, and commu- 
nicated to the House of Representatives on the 6th day of March, 
1867, in a Message from the Senate, in words and figures as follows, 

to-wit: 

"Senate Chamber, 
"Nashville, March 6, 1867.^ 
"Mr. SpeaJcer: — I am ordered by the Senate, in compliance with 
Senate Resolution, No. 29, adopted on the 4th day of March, 1867, 



HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

to inform the House of Representatives, through you, as its Speaker, 
that immediately after the adjournment of the General Assembly of 
the State of Tennessee, sine die, to-wit: on the llth day of March, 
18()7, at 12 o'clock, M., the Senate will, as a Court of Impeachment, 
proceed to fix the preliminaries for the trial of Judge Thomas N. 
Frazier, etc., upon Impeachment made by the House of Representa- 
tives, as the Grand Inquest of the State of Tennessee, and trans- 
mitted to the Senate in House Message, No. 60, February 11, 1867. 

"H. G. Flagg, 

"P. C. of the Senate." 

The Senate of the State of Tennessee, immediately after adjourn- 
ment, sine die, at the hour of twelve o'clock, M., as fixed in Joint 
Resolution, No. 332, resolved themselves into a High Court of Im- 
peachment, on the trial of Thomas N. Frazier, Esquire, Judge of 
the Criminal Court of the County of Davidson, on the Articles of 
Impeachment exhibited against him by the House of Representa- 
tives, and transmitted to the Senate in House Message, No. 60, 
dated February llth 1867, which said Articles of Impeachment, 
are in the words and figures following, to-wit: 

"Besolved by the House of Representatives, That Thomas N. 
Frazier, Judge of the Criminal Court of the County of Davidson, 
and State of Tennessee, be, and he is hereby, Impeached of high 
misdemeanors in office; which high misdemeanors in office, require 
his disqualification. 

'^Resolved, That the Honorable Senate be informed, that the House 
has Impeached Thomas N. Frazier, Judge of the Criminal Court of 
Davidson County, for high misdemeanors in office, requiring his dis- 
qualification, and will in due time, by its managers, present special 
Articles of Impeachment, and demand that the Senate take order 
for the apprehension and trial of the person above named, to answer 
said Impeachment. 

"Resolved, That this House do proceed to elect three of its mem- 
bers, to prosecute said Impeachment, as provided in, and required 
by, the Constitution of the State of Tennessee." 

Whicla said Resolutions, with the Report of the Special Commit- 
tee on Impeachment, [to be found in the Appendix to this Journal,] 
and as part and parcel thereof, indorsed "Concurred in, Jan. 29, 
1867, page 58, book 2," was transmitted to the Senate, as aforesaid, 
accompanied by the Articles of Impeachment therein referred to, as 
follows, to-wit: 



HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



ARTICLES OF IMPEACHMENT, 

Exhibited hy the Houfie of Ecpresentativcs of the State of Tennessee, 
for themselves, and on behalf of all the people of said State, 
against Thomas N. Frtazier, Judge of the Oi-iminal Court of 
the County of Davidson, in said State of Tennessee, in mainte- 
nance of their impeachment heretofore preferred against him, for 
high crimes and misdemeanors, requiring his disqualification: 

ARTICLE L 

That the said Thomas N. Frazier was, prior to the fourth day 
of July, A. D., 1866, and ever since, has been, and still is, Judge of 
the Criminal Court in and for the County of Davidson, and State 
of Tennessee. 

That the General Assembly of the State of Tennessee did, on 
the 4th day of July, A. D., 1866, meet in extraordinary Session, 
pursuant to the Proclamation of His Excellency, William G. 
Brownlow, Governor of the State of Tennessee, of date June 19, 
1866, at the State House at Nashville, the Capital of said State, 
which Extraordinary Session was called in pursuance of the pro- 
visions of the Constitution of the State, for the purpose of ratifying 
or rejecting a proposed amendment of the Constitution of the 
United States, which proposition was, by Concurrent Resolution 
of the Congress of the United States, at the first session of the 39th 
Congress, submitted to the States of the Union, for their considera- 
tion as aforesaid. 

That the House of Representatives did meet on said 4th day of 
July, 1866, in their Hall, in pursuance of the aforesaid Proclama- 
tion, and was then and there called to order by the Hon. William 
Heiskell, the Speaker thereof. That on the 5th day of July, 1866, 
the said House of Repi-esentatives did meet, and the roll being 
called, forty-nine members answered to their names. 

That the House met from day to day, without transacting other 
business, except to effect a quorum to do business, when, on the 
eleventh day of July, 1866, the following Resolution was then and 
there adopted: 

'^ Besolved, That the Speaker be directed to issue warrants of 
arrest for Messrs. Martin, Representative from Jackson County; 
Butler, Representative from Smith; Marable, Representative from 
Benton and Humphreys; Porter, Representative from Henry; Dun- 
naway. Representative from Bedford; Foster, Representative from 
Hamilton, and Williams, Representative from Carter, refractory 
members of this House; that Captain Heydt, as Sergeant-at-Arms, 
be authorized to employ such assistance as may be necessary to 



HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

carry into effect the order of this body; and that said Capt. Heydt, 
as Sers?eant-at-Arms, bring said members before this House, to 
answer for their conduct and contempt of this House." 

That said ResQlution, and proceedinijs thereunder, as contem- 
plated thereby, were based upon and derived their authority from 
Section 11th of the Constitution of the State of Tennessee, as 
follows: 

"Sec. 11. The Senate and House of Representatives, when as- 
sembled, shall each choose a Speaker and its other officers, be 
judges of the qualifications and election of its members, and set 
upon its own adjournments from day to day. Two-thirds of each 
House shall constitute a quorum to do business, but a smaller num- 
ber may adjourn from day to day, and may be authorized by law to 
compel the attendance of absent members." 

Thatit is furthermore provided, in Sec. 12 of the Constitution, 
that each House of <he General Assembly may determine the rules 
of its proceedings, punish its members for disorderly behavior, and 
shall hove other powers necessary for a branch of the Legislature 
of a free State. 

That the House of Representatives did, during its session, to-wit: 
the day of , 1865, determine the rule of its proceed- 
ings by adopting rules for its government, and did provide a Rule, 
known as Rule No. 14, as follows: 

"Rule 14. No member shall absent himself from the service of 
the House, without leave first obtained; and in case a less number 
than a quorum of the House shall convene, they are hereby autiior- 
ized to send the Door keeper, or any other person or persons, for 
any or all absent members, as the majority of such members 
present shall agree, at the expense of such members respectively, 
unless such excuse for non-attendance shall be made, as the House, 
when a quorum is convened, shall judge sufficient." 

That the Hon. Pleasant Williams and the Hon. A. J. Martin, 
wei-e members of the House of Representatives of the General As- 
sembly of the State of Tennessee, having been duly qualified as 
such, and sworn in under and by the oath required by the Constitu- 
tion of the State: — The Hon. Pleasant Williams representing the 
County of Carter, and the Hon, A. J. Martin representing the 
County of Jackson. And said Hon. Pleasant Williams and Hon. 
A. J. Martin, being such members of the said House of Represen- 
tatives, and duly qualified as aforesaid, were subject to all rules, 
regulations and orders of said House, in its authority to compel 
their attendance, and to secure the presence of a quorum of its 
members. And said Williams and Martin, members of the House 



HIGH COUHT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

as aforesaid, were, by express rule of the said House, prevented and 
estopped from absenting themselves from the service of the said 
House Avithout leave first obtained; and it appearing by the afore- 
said Resolution of the House, adopted on the llth of July, 1866, 
that the said Williams and Martin were absenting themselves from 
the service of the said House without leave first obtained, and were 
refractory members thereof, this in defiance of the rules of the said 
House, and in conflict with their official oaths as members of the 
House of Representatives of the General Assembly of the State of 
Tennessee. 

That said Captain Heydt, as Sergeant-at-Arms, of the said House, 
under its Resolution as aforesaid of the llth of July, 1866, and act- 
ing under the direction and authority of the said House, did proceed 
to compel the attendance of the said Williams and Martin, refrac- 
tory members as aforesaid, by arresting them, the said Williams and 
Martin, and did bring them, the said Williams and Martin, to the 
Hall of the House of Representatives, at the Capitol, at Nashville, 
on or about the 16th day of July, 1866, where, in obedience to 
orders from the said House, he, the said Heydt, Sergeant-at-Arms, 
detained them, the said Williams and Martin, in custody, as he was 
in duty bound to do, as an officer of the said House. 

Tiiat on or about the 17th day of July, 1866, the said Thomas N. 
Frazier, Judge of the said Criminal Court, of Davidson County, as 
aforesaid, well knowing that the said Pleasant Williams was a 
member of the House of Representatives, of the General Assembly 
of the State of Tennessee, duly qualified as such; and well knowing 
that he, the said Williams, was held in custody by the Sergeant-at- 
Arms, Captain William Heydt, under the Resolution and authrrity 
of the said House, to compel the attendace of said Williams, as aa 
absenting and refractory member of said House; and well knowing 
the privileges of the said House and of parliamentary bodies; and 
well knowing, as he was bound to know, as a Judge, the laws of the 
land, and the authority of the Constitution of the State of Tennes- 
see, in that behalf expressly made; and well knowing that the said 
House of Re| resentatives had made and adopted rules for its gov- 
ernment; and well knowing the right of a Leglislative Assembly 
to have and compel the attendance of all its members, except those 
absent on leave, and to enforce it, if necessary, as an undoubted and 
important privilege; and well knowing that said William Heydt, 
as aforesaid, was an acting Sergeant-at-Arms of said House, and 
was under orders from said House, and under its direction holding 
said Pleasant Williams, a member of the House as aforesaid, in cus- 
tody, as a refractory and absent member, in the Hall of the said 
House, he, the said Thomas N. Frazier, Judge, as aforesaid, did, cor- 
ruptly, willfully, maliciously, feloniously, and with the intent of com- 
mitting a breach of the privileges of the said House, and with the 
intent, corruptly, willfully, maliciously and feloniously of defeating 
the presence of a quorum of said House, and to disrupt and break 



HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

up the same, issue a writ of habeas corpus, and cause the same to be 
served upon the said Heydt, Sergeaut-at-Arms as aforesaid, com- 
mandino; him, the said Heydt, to appear before him, the said Frazier, 
Judge as aforesaid, with the body of the said Pleasant Williams, 
member of the House of Representatives, from the County of Car- 
ter, so detained there and then, by said Heydt, under the orders of 
the said House as aforesaid. 

That said House of Representatives in consideration of said writ 
of habeas corpus, did, on or about tlie 17th day of July, A. D., 1866, 
adopt the following Resolution: 

"5e it resolved by the House of Representatives, That we do re- 
spectfully, but most emphatically, deny the jurisdiction of said 
Criminal Court in the premises, and the authority of said Court to 
interfere in the discipline and organization of the House of Rep- 
resentatives, and direct Captain Heydt, as Sergeant-at-Arms, to 
tender this resolution to His Honor Judge Frazier, as his return 
to said writ; and furthermore, that Captain Heydt be directed to 
continue under arrest all members detained by him, under said 
resolution, until otherwise ordered by this House." 

That Captain Heydt, Sergeant-at-Arms, as aforesaid, in obe- 
dience to said resolution, did appear in person, and by counsel, 
before the said Frazier, Judge, as aforesaid, on the due return of 
said writ of habeas corpus, and with respect and courtesy, did 
make return thereto, according to tlie said resolution of the said 
House ; that said Williams was detained by him, under authority 
of the said House, as its duly authorized officer, and that the said 
House did respectfully but most emphatically deny the jurisdiction 
of the said Criminal Court in the premises, and the authority of 
said Court to interfere in the discipline and organization of the 
House of Representatives ; informing said Frazier, Judge, as afore- 
said, that he, the said Sergeant-at-Arms, Heydt, was directed to 
tender said resolution as a return to said writ of habeas corpus; 
and that he, the said Sergeant-at-Arms, Heydt, could not pro- 
duce the body of said Pleasant Williams, because, by said resolu- 
tion of said Ilouse, he was directed and bound to continue under 
arrest all refractory members detained by him, until otherwise 
ordered by said House. 

That said Frazier, Judge as aforesaid, disregarding all these 
facts, did refuse to accept the said return of said Heydt, to 
said writ, and .did corruptly, willfully and maliciously, and feloni- 
ously issue an attachment against said Heydt, Sergeant-at-Arms, 
as aforesaid, and order the Sheriff of the County of Davidson, 
to release said Williams from the lawful custody of the House 
of Representatives. All this at Nashville, the Capital of the 
State of Tennessee, on or about the 17th day of July, A. D., 1866, 
in contempt of the power of the House of Representatives over 



HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Fraiier, Judge, etc. 

^ts own members, obstructing the law-making power of the Gov- 
ernment, defeating the exercise of a co-ordinate and sovereign 
branch of the Government of the State, and in gross and unjusti- 
fiable violation of the high and indisputable privileges of the 
House of Representatives, one of the branches of the Legislative 
Assembly of the State of Tennessee ; and thereby, the said Thomas 
N. Frazier, Judge of the Criminal Court of Davidson County, 
was guilty of high misdemeanor in his office of Judge, as afore- 
said, 

ARTICLE IL 

That referring to the recitals and facts stated in Article First of 
this Impeachment, and expressly making each and every statement 
therein written and detailed part of this Article Second, as prelim- 
inary and auxiliary thereto, he, the said Thomas N. Frazier, Judge 
of the Criminal Court of the County of Davidson, and State of 
Tennessee, corruptly, willfully, maliciously, feloniously, and by the 
exercise of illegal power and authority, and an assumption of un- 
precedented judicial functions, did cause the release of Pleasant 
Williams, a member of the House of Representatives, of the Gen- 
eral Assembly, of the State of Tennessee, from the County of Car- 
ter, who was held in custody by the authority of the said House, as 
a refractory and absenting member, as detailed more fully in Arti- 
cle First of this Impeachment; and did authorize and empower the 
Sheriff of the County of Davidson, to arrest and bring before him, 
the said Frazier, Judge, as aforesaid, the said Captain William 
Heydt, Sergeant-at-Arms, of the said House of Representatives, 
upon a charge of contempt of the Court, of him, the said Frazier, 
Judge, as aforesaid; he, the said Frazier, Judge, as aforesaid, well 
knowing that said Heydt, was a Sergeant-at-Arms, as aforesaid, 
and bound to obey the orders of the said House of Representa- 
tives, as its officer; and well knowing that the said House, by its 
Resolution, as detailed in Article First of this Impeachment, had 
directed said Heydt, to make return respectfully, that the jurisdic- 
tion of his said Court was most emphatically denied, and had fur- 
ther ordered and directed said Heydt, Sergeant-at-Arms, to con- 
tinue under arrest all refractory members of said House, detained 
by him, until further orders; and he, the said Frazier, Judge, as 
aforesaid, well knowing the power and privileges of the said House 
of Representatives, to compel the attendance of absent members; 
and well knowing that said House had exercised said power, by 
directing the Speaker thereof, to issue his warrant for the arrest 
of absent members; and well knowing that said Heydt, as Sergeant- 
at-Arms, had arrested said Williams, a refractory member of said 
House, and brought him before the said House; and well knowing 
that said arrested member, was under the jurisdiction of the House, 
and while in such condition, no other department of the Govern- 



10 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

ment, or officer thereof, could riijlitfully or legally claim or take 
jurisdiction of biin, tlie said Williams; and well knowing that the 
privileges of the House of Representatives, as laid down by common 
parliamentary law, did attach to the officers of the Legislative As- 
sembly, as well as to the members; and that the said Heydt, as Ser- 
geant-at-Arms of said House, was privileged with the members, 
from being arrested or withdrawn by legal process, from his duties 
as an officer of said House; he, the said Frazier, Judge, as afore- 
said, did, willfully and maliciously, and corruptly, cause the said 
Heydt, Sergeant-atArms, as aforesaid, (well knowing that he, the 
said Heydt, was a Scrgeant-at-Arms of the said House,) to be ar- 
rested and brought before him, the said Frazier, Judge, as afore- 
said, by the Sheriff of the said County of Davidson; and did ad- 
judge the said Heydt guilty, and did punish the said Heydt, Ser- 
geant-at-Arms, as aforesaid, for an alleged contempt of the Court, 
of him, the said Frazier, Judge, as aforesaid, in making the return 
to said writ of habeas corpus, mentioned in Article First of this 
Impeachment, in the manner directed by said House, by inflicting 
upon the said Heydt, Sergeant-at-Arms, as aforesaid, a fine of ten 
dollars, more or less, and to be committed until paid. All this at 
Nashville, the Capital of the State of Tennessee, on or about the 
seventeenth day of July, A. D., 1866, in contempt of the power of 
the House of Representatives over its own members and officers, 
obstructing the law-making power of the Government, defeating 
the exercise of a coordinate and sovereign branch of the Govern- 
ment of the State, and in gross and unjustifiable violation of the 
privileges, high and indisputable, of the House of Representatives, 
one of the branches of tiie Legislative Assembly of the State of 
Tennessee; and thereby the said Thomas N. Frazier, Judge of the 
Criminal Court of Davidson County, was guilty of high crime and 
misdemeanor, in his office of Judge, as aforesaid. 

And the said House of Repi-esentatives, saving and reserving 
to themselves, the liberty of exhibiting at any time hereafter, any 
further Articles, or other accusation or Impeachment against Thos. 
N. Frazier, Judge, as aforesaid, and also of replying to his answer 
hereto, and of ofiering proof to all and every one of the aforesaid 
Articles of Impeachment or accusation, which shall be exhibited to 
them, as the case may require, do demand that the said Thomas N- 
Fi-azier, Judge, as aforesaid, may be put to answer the misde- 
meanor herein charged; and that such proceedings, examinations, 
trials, and judgments, may be thereupon had and given, as are 
agreeable to justice. 

Attorney General. 

WM. J. SMITH, Rep. of Hardeman Co. 

W. DUGGAN, Rep. of Sevier Co. 

J. A. FUSON, Rep. of DeKalb Co. 

Members of the House of Representatives, and Managers on 
the part of the same, to prosecute said Impeachment. 



HIGH COURT OF IMPEACHMENT. 11 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The foregoing are the Articles of Impeachment, duly prepared 
by the House of Representatives of the State of Tennessee, against 
Thomas N. Frazier, Judge of the Criminal Court of Davidsoa 

County, on the day of , A. D., 1867. 

J. S. MULLOY, 
Speaker pro tern, of the House of Representatives. 

Endorsed when transmitted, as follows, to-wit: 

"Articles of Impeachment, preferred by the House of Repre- 
sentatives, against Thomas N. Frazier, Judge of the Criminal 
Court of Davidson County." 

And further endorsed by the Clerk of the Senate : 

"House Message, No. 60, February 11, 1867, pp. 369, 370." 

The words and figures of which said Message, No. 60, were as 
follows, to-wit: 

"House of Representatives, 

"February 11, 1867. 
"J/?'. Speaker: — I am directed by the House of Representatives, 
to transmit»to the Senate the Report of Committee, togetlier with 
the Articles of Impeachment, in the case of, and against, the Hon. 
Thomas N. Frazier, Judge of the Criminal Court of Davidson 
County. 

"Committee on the part of the House : 

"Messrs. Smith of Hardeman, Fuson and Dugsran. 

"E. H. GowEN, 
"P. C. of the H. of R." 

The Senator from White moved that the Hon J. B. Frierson, 
Speaker of the Senate, on the organization of the Senate as a 
Court of Impeachment, retain the chair as President thereof. 

The motion carried. 

The Senator from Shelby then moved, that the Senate of the 
State of Tennessee, now proceed to organize itself into a Court of 
Impeachment, and that the Senators be sworn in as members of the 
Court, in manner and form, as prescribed in Art. 5, Sec. 2, of the 
Constitution of the State of Tennessee. 

The motion carried. 

Whereupon, on the invitation of the President of the Court, 
the Hon. James 0. Shackelford, one of the Judges of the Supreme 
Court of Tennessee, came forward to the Speaker's stand, and sol- 
emnly administered to each of the following-named Senators of the 
State of Tennessee, to-wit : The Hon. John Aldridge, William Bos- 



12 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

son, A. M. Cate, B. Frazier, W. R. Hall, J. D. Johnson, G. W. 
Keith, C. J. McKinney, Thomas B. McElwee, W. J. McFarland, 
P. P. C. Nelson, Joseph Powell, H. S. Patterson, D. W. C. Senter, 
Wm. Spence, James P. Thompson, W. F. Robinson, and J. B. 
Frierson, (the Hon. John W. Smith affirming,) the Hon. Thomas 
J. Cypert and Joseph G. Carrigan, being absent; on leave — the 
following oath, to-wit: 

"Oath of Senatoes. — You, and each of you, do solemnly swear, 
upon the Holy Evangelists of Almighty God, as Senators of the 
State of Tennessee, authorized, under the Constitution of the State, 
to try cases of impeachment, provided by that instrument, that you, 
and each of you, will well and truly try the matters of impeachment 
preferred, on the 11th day of February, 1867, by the HouSe of 
Representatives, on behalf of the people of the State of Tennessee, 
against Thomas N. Frazier, Judge of the Criminal Court of Da- 
vidson County, State of Tennessee; that you, and each of you, will 
impartially try the matters of impeachment therein praferred, and 
true judgment render, between the people of tlie State of Tennes- 
see, and the said Thomas N. Frazier. So help you God." 

On motion, it was ordered that the Clerks and officers of the 
Senate be now sworn in, as the Clerks and officers of the Court. 

And thereupon. His Honor, Judge Shackelford, administered to 
H. G. Flagg, Principal, and Clay Newland, Clerks, and W. T. 
Cate, Sergeant-at-Arms, and B. F. Smith, Messenger, the following 
oath, to-wit: 

"You, and each of you, do solemnly swear, upon the Holy Evan- 
gelists of Almighty God, that, as officers of the Senate, sitting as a 
Court of Impeachment, you will true records keep, and faithfully 
perform the duties pertaining to your offices, respectively, to the 
best of your ability. So help you God." . 

The member from Shelby, Mr. Smith, moved the adjournment of 
the Senate, as a Court of Impeachment, to two and-a-half o'clock, 
P. M. 

The motion carried. 

Whereupon, it was ordered that the Senate, as a Court, adjourn 
to two and-a-half o'clock, P. M. 



HIGH COURT OF IMPEACHMENT. 13 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



AFTERNOON SESSION. 

The Senate, as a Court of Impeachment, met according to ad- 
journment, 

The Hon. J. B. Frierson, President thereof, in the chair. 

It was ordered that the roll be called, and there were 

Present 17 

Absent 2 

Members present, were: 

Aldridge, Bosson, Cate, Frazier, Hall, Johnson, Keith, McKin- 
ney, McElwee, McFarland, Nelson, Powell, Smith, Senter, Spence, 
Thompson and the President. 

Members absent, were: 
Patterson and Robinson. 

The absentees having come into the Hall of the Senate, and taken 
their seats, 

It was declared that all the sworn members of the Court were 
present in their seats. 

The Managers on the part of the House of Representatives, 
Messrs. Smith of Hardeman, Fuson of DeKalb, and Duggan of Se- 
vier; and the defendant, in proper person, and by his Counsel, E. 
H. East, Esq., being present in the Hall of the Senate, were invited 
to, and came forward, and took seats within the bar of the Senate. 

On motion of the member from Shelby, Mr. Smith, 

It was ordered, that the oath which had been administered to the 
members of the Court, be read by the Clerk, for the information of 
all present. 

And the oath was accordingly read. 

The member from Madison, Mr. McFarland, moved that the Sen- 
ate, as a Court of Impeachment, now proceed to elect a President 
thereof. 

The member from White, Mr. Bosson, moved, in lieu of the mo- 
tion of Mr. McFarland, the following motion, to-wit: 

[No. 1.] Resolved by the Senators composing this Court, That the 



14 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Hon. J. B. Frierson preside, as its President, on the trial of 
Impeachment of Judge Thomas N. Frazier. 

The motion oifered, was accepted in lieu. 

The question was then taken on the adoption of the motion ac- 
cepted in lieu, and the vote was taken by ayes and noes. 

Ayes 18 

Noes , , 

Members voting aye, were: 

Aldridge, Bosson, Cate, Frazier, Hall, Johnson, Keith, McKia- 
ney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, Sen- 
ter, Spence, Thompson and Robinson. 

Tlie motion carried. 

And the Hon. J. B. Frierson was declared, by a unanimous vote, 
the President of the Senate, as a Court of Impeachment. 

The defendant, by his Counsel, E. H. East, Esq., arose, and de- 
clared in open Court, that he, the defendant, expressly waived, for 
himself, the advantage of any and all objections, if any there be, 
which may, or might arise, from the record, as to the manner and 
form of the organization of the Senate, as a Court of Impeachment. 

All the parties, the Managers on the part of the House of Repre- 
sentatives, and the defendant, in proper person, and by his Counsel, 
E. H. East, Esq., being present in the Court, 

The defendant, tor himself, and by his Counsel, expressly waived, 
for himself, the formality of service and summons to appear before 
the Senate, as a Court of Impeachment, to answer, etc. 

Whereupon, the Hon. J. B. Frierson, President of the Senate, 
sitting as a Court of Impeachment, addressed the defendant in the 
following words, to-wit: 

"Judge Frazier, you have been summoned before the Senate of 
the State of Tennessee, now acting as a Court, on Articles of Im- 
peachment, preferred against you by the House of Representatives. 

"The Senate, as a Court, are now ready to proceed in the investi- 
gation of said charges, and to hear any answer you may think pro- 
per to make, by yourself or counsel, and are willing to extend to 
you all the rights and privileges guaranteed by the Constitution 
and laws of our State.'' 



HIGH COURT OF IMPEACHMENT. 15 

The People of Tennei^see vs. Thomas N. Frazier, Judge, etc. 

Mr. East, Counsel for defendant, moved the Court as follows, to- 
wit: 

[No. 2.] ^^Resolved hy the Court, That the Sergeant-at-Arms, on 
the application of either the managers or defendant, be required to 
execute and return process of subpoena, whenever called upon so to 
do; and that he be empowered to appoint deputies, in all cases in 
which he cannot execute the process in person." 

The question on the adoption of the motion, was taken by ayes 
and noes. 

Ayes 19 

Noes 

Members voting aye, were: 

Aldridge, Bosson, Cate, Frazier, Hall, Johnson, Keith, McKinney, 
MeEiwee, McFarland, Nelson, Powell, Patterson, Smith, Senter, 
Spence, Thompson, Robinson, and the President. 

And the motion was adopted. 

Mr. East, Counsel for defendant, offered the following motion for 
adoption, to-wit: 

[No. 3.] "Jiesolved hy the Court, That the President of the 
Court and Principal Clerk, be authorized and empowered to sign 
and issue all process for subpoenas for witnesses, during the adjourn- 
ment ot the Court, upon the application of either the managers or 
the defendant." 

The question on the adoption of the motion was put, and the vote 
taken by ayes and noes. 

Ayes 19 

Noes 

Members voting aye, were: 

Aldridge, Bosson, Cate, Frazier, Hall, Johnson, Keith, McKinney, 
McElwee, McFarland, Nelson, Powell, Patterson, Smith, Senter, 
Spence, Thompson, Robinson, and the President. 

And the motion was adopted. 

Mr. Smith, one of the Managers on the part of the House of Rep- 
resentatives, submitted the following motion for adoption, to-wit: 



16 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee v». Thomas N. Frazier, Jodge, etc. 

[No. 4.] '■'■Resdved hy the Court, That only the Managers on 
the part of the State, and the Attorneys for the defendant, Report- 
ers for the Press, and Witnesses, when upon examination, shall be 
allowed upon the floor of the Senate during the trial; ladies ex* 
copied, and other guests as may be invited by the President. 

"The Sergeant-at-Arms is instructed to enforce this motion." 

The member from Grainger, Mr. Senter, moved the Court, to 
amend the motion, by striking out the word "floor/' and inserting 
the word "bar" in place thereof. 

The motion to amend was then asked to be withdrawn by Mr. 
Senter. 

The question, on the motion made by Mr. Senter to withdraw, 
was then taken by ayes and noes. 

Ayes 18 

Noes 1 

Members voting aye, were: 

Aldridge, Bosson, Cate, Frazier, Hall, Johnson, Keith, McKinney, 
McElwee, McFarland, Nelson, Powell, Patterson, Smith, Senter, 
Spence, Robinson, and the President. 

Member voting no, was: 

Thompson. 

The motion was adopted, and the amendment was withdrawn. 

The question on the adoption of the motion, made by Mr. Smith, 
was then taken by ayes and noes. 

Ayes 12 

Noes 7 

Members voting aye, were: 

Aldridge, Bosson, Cate, Frazier, McElwee, Nelson, Powell, Pat- 
terson, Smith, Spence, Robinson and the President. 

Members voting no, were: 

Hall, Johnson, Keith, McKinney, McFarland, Senter and Thomp- 
son. 

And the motion was adopted as a Rule. 



HIGH COURT OF IMPEACHMENT. 17 

The People of Tenaessee vs. TLomas N. Frazier, Judge, etc. 

The member from Madison, Mr. McParland, offered the following 
motion, and moved its adoption, to-wit: 

[No. 5.] Bules for the government of the Court of Impeach- 
ment, in the trial of Thomas N. Frazier, Judge, etc.: 

Rule First. No one witness shall be examined by more than 
one of the Counsel on the part of the State, and one on the part of 
the Respondent. 

Rule Second. Not more than two of the Counsel on either 
side, shall speak on any collateral question before the Court, such as 
upon the competency or admissibility of testimony. 

Rule Third. All motions made by Counsel on either side, shall 
shall be put in writing, and entered of Record. 

Rule Fourth. No argument upon any point before the Court, 
shall be made by any member, but he may, when called upon for a 
decision, state his reasons for the opinion, or deliver them in writing. 

Rule Fifth. Any Counsel or Manager, deviating in argument, 
from the point before the Court, may be called to order by the Presi- 
dent, or any member of the Court. 

Rule Sixth. All questions, raised by either party in this cause, 
shall be decided by a majority vote. The ayes and noes shall be 
taken by the Principal Clerk, on every question, and the result shall 
be announced by the President. 

Rule Seventh. Points of order may be decided by the Presi- 
dent, or if the President so desires, he may submit such points to 
the Court. 

Rule Eighth. Any member or members of the Court, may, at 
the close of the trial, have his or their reasons spread upon the re- 
cords, for his or their final vote. 

The member from Hawkins, Mr. McKinr.ey, moved that Motion 
No. 5, be passed over informally for the present, and be submitted 
for the examination of the Counsel on the part of the State, and the 
defense. 

The question on the adoption of the motion, was taken by ayes 
and noes. 



18 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vt. Thomas N. Frazier, Judge, etc. 


Ayes 




. . 19 


Noes. , 




,. 



Members voting aye, were; 

Aldridge, Bosson, Gate, Frazier, Hall, Johnson, Keith, McKinney, 
McElwee, McFarland, Nelson, Powell, Patterson, Smith, Senter, 
Spence, Thompson, Robinson and the President. 

And the motion was adopted. 

The Counsel for defendant, Mr. East, offered the following motion 
for adoption, to-wit: 

[No. 6-] ''Resolved hy the Court, Tliat the defendant, Thomas 
N. Frazier, in person appears, and moves the Court, to allow him 
such time, as will be convenient to the Senate, to plead, answer or 
demur to the Articles of Impeachment, against him presented, by 
the Managers of the Honorable House of Representatives; and 
that he be allowed to file his pleas, answer or demurrer, with the 
Clerk of this Court in the meantime; and in such time, that the 
same may be printed; and so as not to delay a hearing, when the 
Court should re-assemble." 

The question on the adoption of the motion was put, and the vote 
taken by ayes and noes. 

Ayes 19 

Noes ; . . 

Members voting aye, were: 

Aldridge, Bosson, Gate, Frazier, Hall, Johnson, Keith, McKinney, 
McElwee, McFarland, Nelson, Powell, Patterson, Smith, Spence, 
Senter, Thompson, Robinson and the President. 

And the motion was adopted as a Rule. 

Mr. Smith, one of the Managers for the State, offered the follow- 
ing motion for adoption, to-wit: 

[No. 7.] ^'Resolved hy the Court, That this Court adjourn to the 
first Monday in May, it being the 6th day." 

The member from Washington, Mr. Nelson, offered the following 



HIGH COURT OF IMPEACHMENT. 19 

The People of Tennessee vs. Thomas N, Frailer, Judge, etc. 

motion, in lieu of the motion of Mr. Smith, and moved the adoption 
of the same, to-wit; 

[No. 8.] Resolved hy this Court of Impeachment, noio in session, 
That the Court take a recess, until the sixth day of May, 1867, for 
the purpose of giving Thos, N. Frazier and Counsel, further time to 
prepare for trial." % 

The motion offered was accepted in lieu, and the question on the 
adoption of the motion was put, and the vote taken by ayes and 
noes. 

Ayes 19 

Noes 

Members voting aye, were: 

Aldridge, Bosson, Cate, Hall, Johnson, Keith, McKinney, McEl- 
wee, McFarland, Nelson, Powell, Patterson, Smith, Senter, Spence 
Thompson, Robinson and the President. 

And the motion was adopted. 

The defendant, Thomas N. Frazier, was regularly served with a 
true and attested copy of the Articles of Impeachment, etc., etc., 
by the Principal Clerk of the Senate. 

The member from Washington, Mr. Nelson, offered the following 
motion for adoption, to-wit: 

[No. 9.] "Resolved by the Court, notv in session, That every mem- 
ber of this Court, is requested to attend punctually to the hour ad- 
journed to, during the entire session of the Court. 

Resolved further, That no member withdraw or absent himself 
from the Court, without first obtaining leave of the Court." 

The motion was withdrawn. 

The member from Dyer, Mr. Hall, moved that the Court now ad- 
journ to take a recess, in compliance with Motion No. 8, to meet on 
the 6th day of May, 1867, at 12 o'clock, M. 

The motion carried; and 

The Hon. J. B. Frierson, President, declared the Senate, as a 
Court of Impeachment, adjourned to take a recess; to assemble 
again on the 6th day of May, 1867, at 12 o'clock, M. 

JOSHUA B. FRIERSON, 

President of the Court. 



20 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



MONDAY, MAY 6, 1867. 



The People of Tennnessee 

vs. y IMPEA CEMENT. 

Thomas N. Frazier, Judge, &c. 



The Senate as a High Court of Impeachment met pursuant to its 
adjournment, at 12 o'clock, M. 

The Hon. J. B. Frierson, President, in the Chair. 

The Manaojers for the State and their Counsel, and the Re- 
spondent and his Counsel, being present in the Court, 

The roll was called. 

Present. . .*. % 17 

Absent 4 

Members present, were: 

Bosson, Cate, Carrigan, Frazier, Hall, Johnson, Keith, McKin- 
ney, McElwee, Nelson, Powell, Patterson, Smith, Senter, Spence, 
Thompson, and the President. 

Members absent, were, 

Aldridge, Cypert, McFarland and Robinson. 

The President announced a quorum present. 
The member from Warren, Mr. Thompson, offered motion No. 
10, to-wit: 

^'Resolved hy the Court, That Senator Carrigan be sworn in, he 
having been absent at the organization of this Impeachment 
Court." 

By consent, the motion was withdrawn. 

There being no objections raised, the member from Lincoln, Mr. 
Carrigan, came forward, and the Hon. N. A. Patterson, Judge of 
the 8th Judicial Circuit of Tennessee, administered the following 
oath to him, to-wit : 

"You do solemnly swear, upon the Holy Evangelists of Almighty 



HIGH COURT OF IMPEACHMENT. 21 

The People of Tennessee vs. Thomas N, Frazier, Judge, etc. 

Ood, as a Senator of the State of Tennessee, authorized under the 
Constitution of the State to try cases of Impeachment, provided by 
that instrument, that you will well and truly try the matters of Im- 
peachment preferred on the 11th day of February, 1867, by the 
House of Representatives, on behalf of the people of Tennessee, 
against Thomas N. Frazier, Judge of the Criminal Court of David- 
son County, State of Tennessee; that you will impartially try the 
matters of Impeachment therein preferred, and true judgment ren- 
der, between the people of the State of Tennessee and the said 
Thomas N. Frazier, So help you God." 

The proceedings of the last meeting were then read and ap- 
proved. 

Mr- Smith, one of the Managers on the part of the House of 
Representatives, arose in his seat, and announced, that a clerical 
error appeared in the record, in the First Article of the Impeach- 
ment, to-wit: That the word "Brittle" should be substituted for 
the word Butler, as the Representative from Smith; and moved the 
Court to correct said clerical error. 

Mr. Ewing one of the Counsel for the defense, arose, and stated, 
on behalf of the Respondent, that all objections to the correction 
of said error was waived on the part of the defense. 

And there being no objection, the error was corrected; and the 
word ''Brittle" was substituted for the word "Butler," as the Repre- 
sentative from Smith County. 

The member from Warren, Mr. Thompson, moved an adjourn- 
ment until to-morrow, at 10 o'clock, A. M. 

The motion was withdrawn. 

It appearing to the satisfaction of the Court, that the Respondent 
had filed neither plea, answer or demurrer, to the Articles of Im- 
peachment preferred against him, and now under investigation. 

The Managers for the State, by their counsel, Mr. Trimble, of- 
fered and moved the adoption of the following Rule, to-wit: 

[No. 11.] Resolved hy the Court, That the Respondent and his 
Counsel, have further time, until to-morrow at 10 o'clock, A. M,, 
to file his pleas, answer or demurrer, to the Articles of Impeach- 
ment filed against him, as aforesaid." 

The motion carried, and the Rule was adopted. 



22 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The Member frora Lincoln, Mr. Carrigan, offered Motion No. 1 2 
to-wit: 

^^Besdved by the Court, That this Impeachment Court hold two 
Sessions every day. Morning Session to begin at 9 o'clock, A. M., 
and continue until 12 o'clock, M. And the afternoon Session, to 
commence at 2 o'clock, and continue until 5 o'clock, P. M." 

The member from Grainger, Mr. Senter, offered Motion No. 13, 
in lieu of the motion offered by the member frora Lincoln, Mr. Car- 
rigan, to-wit: 

'■''Besolved hy the CmiH, That this Court hold but one Session each 
day; from 9 o'clock, A. M., to to 1 o'clock, P. M., each day." 

The motion offered was accepted in lieu, and adopted as a Rule. 
The member from Warren, Mr. Tliompson, moved an adjourn- 
ment under the Rule, to meet at 9 o'clock, A. M., to-morrow. 
The motion carried. 

Whereupon, the Hon. J. B. Frierson, President, declared the 
Court adjourned, to meet at 9 o'clock, A. M. to morrow, under the 
Rules. 

JOSHUA B. FRIERSON, 

President (^ the Courts 



HIGH COURT OF IMPEACHMENT. 23 



Tlie People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



TUESDAY, MAY 7, 1867. 



The Senate, as a High Court of Impeachment, met pursuant to 
adjournment, at 9 o'clock, A. M., 

The Hon. J. B. Frierson, President, in the chair. 

Tiie'Managers for the State and their Counsel, and the Respondent 
and his Counsel, being present in the Court, 

The roll was called. 

Present • 18 

Absent 3 

Members present, were: 

Bosson, Cate, Carrigan, Frazier, Hall, Johnson, Keith, McKin- 
nej, McElwee, Nelson, Powell, Patterson, Smith, Senter, Spence,' 
Thompson, Robinson and the President. 

Memters absent, were: 
Aldridge, Cypert and McFarland. 

The President announced a quorum present, and the proceedings 
of yesterday were read and approved. 

The Rules for the government of the Senate, as a Court of Im- 
peachment, which had been referred to the Counsel for the prosecu- 
tion and defense, jointly, for consideration, were reported back, 
with amendments, to-wit: 

Eules of Order, for the government of the Court of Impeachment, 
in the trial of Thomas iY. Frazier, Judge, etc.: 

Rule First. No one witness shall be examined by more than 
one of the Counsel on the part of the State, and one on the part of 
the Respondent, 

Rule Second. Not more than two of the Counsel on either 
side, shall speak on any collateral question before the Court, such 
as upon the competency or admissibility of testimony. 

Rule Third. All motions made by Counsel on either side, shall 
be put in writing, and entered of record. 



24 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Rule Fourth. No argument upon any point before the Court 
shall be made by any member; but he may, when called upon for a 
decision, state his reasons for the opinion, or deliver them in 
writing. 

Rule Fifth. Any Counsel or Manager, deviating in argument, 
from the point before the Court, may be called to order by the 
President, or any member of the Court. 

Rule Sixth. Points of order may be decided by the President, 
or, if the President so desires, he may submit such points to the 
Court. 

Rule Seventh. Any member or members of this Court, may, at 
the close of the trial, have his or their reasons spread upon the 
records, for his or their final vote. 

On motion, the question on the adoption of the Rules, was taken 
by ayes and noes. 

Ayes 18 

Noes 

The members voting aye, were: 

Bosson, Cate, Carrigan, Frazier, Hall, Johnson, Keith, McKin- 
ney, McElwee, Nelson, Powell, Patterson, Smith, Senter, Spence, 
Thompson, Robinson and the President. 

And the Rules, as amended, were adopted. 

On motion of the member from Grainger, Mr. Senter, one hun- 
dred copies of the foregoing Rules were ordered to be printed, for 
the use of the Court. 

The member from White, Mr. Bosson, oflfered Motion No. 14, 
to-wit: 

"■'Resolved hy ihe Court, That Resolution [Motion] No- 4, passed 
by this Court of Impeachment, be, and it is hereby rescinded, and 
the public be allowed to occupy the space outside the bar." 

The question on the adoption of the motion was taken by ayes 
and noes. 

Ayes 16 

Noes 2 



HIGH COURT OF IMPEACHMENT. 25 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Members voting aye, were: 

Bosson, Cate, Carrigan, Frazier, Hall, Johnson, Keith, McKin- 
ney. McElwee, Nelson, Powell, Patterson, Senter, Thompson, Robin- 
son and the President. 

Members voting no, were: 

Smith and Spence. 

And the motion was adopted, as a Rule. 

Mr. Smith, a Manager for the State, offered Motion No. 15, 
to-wit: 
Be/ore the Senate of the State of Tennessee, sitting as a High Court 

of Impeachment, in the matter of Hon. Thomas N. Frazier, 

Judge, etc., Impeached: 

And now come the Managers on the part of the House of Rep- 
resentatives, to conduct the Impeachment of Thomas N. Frazier, 
Judge of the Criminal Court of the County of Davidson, and say: 
That they object to the sitting, as one of this Court of Impeach- 
ment, of the Hon. B. Frazier, Senator from the Counties of Knox 
and Roane; and say, that the said Hon. B. Frazier, Senator as 
aforesaid, is incompetent to sit as one of the aforesaid Judges, for 
the reason tliat he, the said Hon. B. Frazier, as aforesaid, is the 
brother of the Hon. Thomas N. Frazier, the Judge herein im- 
peached and brought to trial, whereof they are ready to prove. 
Wherefore, the said Managers demand that the said Hon. B. Fra- 
zier, Senator from Knox and Roane Counties, as aforesaid, be ex- 
cluded from this Court— as of right, justice, conscience, equity, and 
the laws of bias, require." 

Pending the discussion of which, leave having first been asked 
and obtained, 

Mr. East, one of the Counsel for the defense, read and filed the 
answer of respondent to the Articles of Impeachment preferred 
against him; etc.; which answer is, in words and figures, to-wit: 

"This respondent, in proper person, comes into Court, and pro- 
testing that there is no such crime alleged in said Articles of Im- 
peachment agninst him, such as require his disqualification and re- 
moval from ofiice, or to which he is, or can be, bound to make 
answer; and reserving to himself all benefit of exceptions thereto 
for insufficiencies, in as full and ample a manner as if the same had 
been demurred to, and protesting that he ought not to be injured by 



26 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

reason of auytliing therein contained and charged, he submits the 
following, by way of answer thereto: 

He says, that on the 28th day of June, 1864, he received a Com- 
mission from the Governor of the State of Tennessee, as Judge of 
the Criminal Court, of the Special District, composed of the coun- 
ties of Rutherford, Davidson, and Montgomery: and subsequently, 
this District was changed, so as to be composed of the counties of 
Rutherford and Davidson; and by a vote of the people, on tiie 22d 
day of February, 1865, he was confirmed in said office, and that as 
such Judge he was exercising the functions of said office on the 4th 
day of July, 1866, and subsequent to that time. Respondent ad- 
mits, that, by Proclamation of date, June 19, 1866, His Excellency, 
W. G. Brownlow, did call the members of the General Assembly to 
meet in extraordinary session at the State House, in the city of 
Nashville, on the 4th day of July, 1866, for the purposes mentioned 
in said first Article of the Bill of Impeachment. Respondent says 
that he is informed, and believes, that, on said 4th of July, 1866, 
many of the members of the House of Representatives did so meet, 
.J)ut that the number so assembled was less than a quorum of said 
%ousc; and that, on no day between said 4th of July and the 11th 
day of said month, did more than forty-nine members of said House 
of Representatives assemble, or answer to the call of the roll of 
said House. He further admits, that, on said 11th day of July, 
1866, the resolutions set out in said Articles of Impeachment were 
voted upon and passed by the members so assembled, being, as 
before stated, less than a quorum of said House. 

Respondent does not know, nor is he prepared to admit, upon 
what Articles of the Constitution of the State, said resolutions 
were based, nor does he know anything of said Rule No. 14, nor 
does he remember ever to have seen the latter, or known of its 
existence, until he saw it in said Articles of Impeachment. If the 
same had ever before been called to his attention, he now fails to 
remember it. Respondent, further answering, says, that the first 
time he ever knew either of the persons, to-wit : A. J.Martin, 
Pleasant Williams, or William Heydt, or their respective relations 
to the Government, as charged, was in manner following, and by 
the papers hereafter shown, in which their names and offices are 
stated. Respondent says, that, on the 16th day of July, 1866, a 
petition was presented to him, as Judge aforesaid, for a writ of 
habeas corpus, as follows, viz: 

" To the Hon. Thomas N. Frazier, Judge, etc. : 

"Your petitioner. Pleasant Williams, a citizen of Carter County, 
in the State of Tennessee, would show unto your Honor, that he is 
a member of the Legislature of the State of Tennessee, being a 
member of the Lower House; that on the 28th day of May, 1866, 
the said Legislature adjourned over to the 1st Monday of No- 



HIGH COURT OF IMPEACHMENT. 27 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

vember, 1866; and in so doinsr, by its own adjournment, fixed the 
time of meeting. Since that time — that is, since the adjournment — 
His Excellency, W. G. Brownlow, by some sort of Proclamation, 
lias undertaken to convene the Legislature; and under said Pro- 
clamation, some of the members came together, but failed to get a 
quorum, and up to this time, have not had a quorum. Said mem- 
bers, being less than a quorum, have undertaken, through one 
William Heydt, to arrest, and have arrested, such members as were 
not present; and on the 15th day of the present month, one Thomas 
Frame, in company with a negro — whose whereabouts is not now 
known — came to the house of petitioner, in Carter County, Tennes- 
see, and claiming to act under and by authority of said Heydt, 
arrested petitioner and brought him to the city of Nashville, where 
he is now held illegally by said Heydt and Frame; that said par- 
ties, Heydt and Frame, actually now have petitioner under arrest, 
and claim the right to hold him as a prisoner. And, therefore, 
petitioner avers : 

"1st. That he is illegally deprived of his liberties by the 
parties aforesaid. 

"2d. Petitioner states that, according to the best information he 
has, he was arrested by authority of a resolution passed by the 
members of the Legislature, or some of them who came to the Capi- 
tol under said Proclamation — a copy of which is here given, as fol- 
lows, to-wit : 

^'^ Resolved, That the Speaker be directed to issue warrants of 
arrest for Messrs. Martin, Representative from Jackson County; 
Brittle, from Smith; Porter, from Henry; Marable, from Benton 
and Humphreys; Dunaway, from Bedford; Foster, from Hamilton; 
and Williams, from Carter, refractory members of this House; 
and that Captain H' ydt, as Sergeant-at-Arms, be authorized to 
employ such assistance as may be necessary to carry into effect the 
orders of this body, and that said Sergeant-at-Arms bring such 
members before this House, to answer for their disorderly conduct 
and contempt of this House.' 

"3d. The legality of this restraint has not already been ad- 
judged, upon a prior proceeding of the same character of this, to 
the best of petitioner's knowledge and belief. 

"4th. This, the first application for the writ of habeas corpus. 
Petitioner therefore prays that said William Heydt and Thomas 
Frame, both of wliom are now in Davidson County, in the City of 
Nashville, be made defendants, and required to answer this ])etition, 
and that the writ of habeas corpus issue to bring petitioner before 
your Honor, that justice may be done in the premises. 

[Signed:] PLEASANT WILLIAMS, 

By J. G. Carrigan. 



28 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

State of Tennessee, Davidson County: This day personally ap 
peaicd before rae, the undersigned, Judge of the Criminal Court 
for the counties of Rutherford and Davidson, in said State, Joseph 
E. Carrigan, as agent of the petitioner, Pleasant Williams, in 
the foregoing petition, and made oath that the facts as therein 
stated, are true, to the best of his knowledge, information and be- 
lief. J. G. Carrigan. 

Sworn to and subscribed before me, this 16th day of July, 1866. 

THOMAS N. FRAZIER, Judge. 

And thei-eupon, the respondent issued the following writ, to-wit: 
"STATE OF TENNESSEE: 

" Jb the Sheriff of Davidson County, Tennessee: 

"You are hereV^y commanded to summon and command Wm. 
Heydt and Thomas Frame to bring the body of Pleasant Williams, 
with tlie cause of his detention, before me at 9 o'clock, A. M., on 
the 17th of July, 1866, at the Court House, in the Circuit Court 
room, in the City of Nashville, Davidson County, Tennessee, that 
his case may be dealt with as the law directs; the petition of said 
Williams, sworn to, having been presented to me, in which it is al- 
leged that the said Heydt and Frame have him, the said Williams, 
in custody and confinement, under an arrest, and hold him a prisoner 
unlawfully. You, the said Sheriff, shall read and make known to 
the said Heydt and Frame the contents of this writ; and you, the 
said Sheriff, will have this writ before me at said time and place, 
with a return thereon of your doings in the premises. This 16th 
day of July, 1866. [Signed:] Thomas N. Frazier, Judge, etc. 

That he knew nothing more of said Williams or the cause of his 
alleged illegal confinement and restraint upon liis liberties than is 
in said petition stated. Said writ was issued to the Sheriff of 
Davidson county, and on the following day was returned by said 
officer, endorsed as follows, to-wit: 

" Came to hand the same day issued, and executed same day, on 
William Heydt, by reading to him the within, and Thomas Frame 
is not to be found. [Signed:] " E. E. Patterson, Sheriff J^ 

And thereupon, said Heydt not appearing, and said Williams not 
appearing, said Heydt, by his counsel, made the following return 
to said writ : 

return of WILLIAM HEYDT. 

"William Hedyt makes the following return to the writ of 



HIGH COURT OF IMPEACHMENT. 29 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Jiabeas corpus sued out before the Hon. Thomas N. Frazier, Judge, 
etc., by P. Williams, toi^ether with the cause for not brini^ing the 
body of said P. Williams: That respondent is an officer, being the 
Sergeant-at-Arms of the House of Representatives of the General 
Assembly of the State of Tennessee; that on the 14th day of July, 
1866, he arrested the petitioner, who is a member of said House of 
Representatives, being a Representative from the County of Carter, 
in said State, under the authority contained in a warrant issued by 
the Speaker of tiie said House of Representatives, on the 11th day 
of July, 1866, a copy whereof is annexed hereto, and made a part 
hereof, marked (A,) which issued in pursuance of a resolution 
adopted on the^llth day of July, 1866, by said House of Repre- 
sentatives, a certified copy whereof is herewith returned and made 
a part hereof, marked (B;) that at the time the said writ of Itabeas 
corpus was served on respondent, he had, in pursuance of, and in 
obedience to, said warrant of arrest, issued by the said Speaker of 
the House of Representatives, made return of said warrant, through 
said Speaker, to said House of Representatives, then in session; 
and the said House of Representatives, after the service of said 
writ, to-wit, on the 17th day of July, 1866, adopted a resolution, a 
copy whereof is returned herewith, marked (C,) containing an 
order on respondent to continue under arrest all members of the 
said House of Representatives detained by respondent, under the 
resolution directing said arrest, until otherwise ordered by the said 
House of Representatives; and respondent returns that fact, to- 
gether with the fact that said petitioner is not in the custody of 
respondent, but held by the said House of Representatives, as the 
cause for not bringing the body of the said Williams before the 
Judge to whom this return is now made, this 17th day of July, 
1866. William Heydt." 

"Sworn to and subscribed before me the 17th of July, 1866. 

"DAVID C. LOVE, Clerk. 

"By J. F. Hide, D. CP 

(A.) "Speaker's Room, 

^^HaR of the House of Hepresentatives, 

"Nashville, tenn., July 11, 1866. 
"To Captain William Heydt, Special Sergeant-at-Arms of the House 
'"''of Representatives: 

"You are hereby charged with the proper execution of the follow- 
ing order, this day made by the members present, of the House of 
Representatives. You are required to make due return of the 
execution of the same, through me, to the House of Representa- 
tives, now in session. 

"Given under my hand and seal, the day and year aforesaid. 

"William Heiskell, 
'^Speaker of the House of Hepresentatives." 



30 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

^^Resolved by the Honse of Representatives of the State of Ten- 
nessee, That the Speaker be directed to issue warrants of arrest, 
for Messrs. Martin, Representative from Jackson County; Brittle, 
from Smith County; Marable, from Benton and Humphreys Coun- 
ties; Porter, from IJenry County; Brown, from Madison County; 
M. E. W. Dunnaway, from Bedford County; Foster, from Hamilton 
County; Overstreet, from Overton County; and Williams, from 
Carter County, refractory members of this House; and that Capt. 
William Heydt, as Sergeant-at-Arms, be authorized to employ such 
assistance as may be necessary to carry into effect the orders of 
this body; and that said Capt. Heydt, as Sergeant-at-Arms, bring 
said members before this House, to answer for their disorderly 
conduct and contempt of this House. 

"Adopted July 11, 1866." * 

"A true and correct copy of the original Resolution. 

"E. H. GowEN, 
"P. C. of the R. of B." 
(C.) 
"Whereas, By Proclamation, by His Excellency, Gov. W. G. 
Brownlow, the present Legislature was assembled under a constitu- 
tional provision, to this end; and ivhereas, divers members of said 
Legislature, of the House of Representatives, absented themselves 
from its lawful service, in contempt tiiereof; and ivhereas, said 
House of Representatives, in the exercise of its lawful power, and 
to preserve its organization, adopted the following Resolution, 
to-wit: 

" 'Resolved, That the Speaker of the House of Representatives, be 
directed to issue warrants of arrest for Mr. Martin, Representative 
from Jackson County; Mr. Brittle, Representative from Smith 
County; Mr. Marable, Representative from Benton and Hum- 
phreys Counties; Mr. Porter, Representative from Henry County; 
Mr. Dunnaway, Representative from Bedford County; Mr. Foster, 
Representative from Hamilton County; Mr. Williams, Represent- 
ative from Carter County, refractory members of this House; and 
that Captain Heydt, as Sergeant at-Arms, be authorized to employ 
such assistance as may be necessary to carry into eflect the orders 
of this body; and that said Captain Heydt, as Sergeantat-Arms, 
bring said members before this House, to answer for their conduct 
and contempt of this House.' " 

"And whereas, Captain Heydt, as Special Sergeant-at-Arras, 
through persons properly authorized, did proceed, and did arrest 
P. Williams, Representative from Carter County, in obedience to 
said order of said House of Representatives, and now retains him 
in custody; and whereas, a writ of habeas corpus has been sued out 
before His Honor, Judge Frazier, of the Criminal Court of David- 



HIGH COURT OF IMPEACHMENT. 31 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

son County, and served upon Captain Heydt, commanding him to 
appear before liim, with the body of said P. Williams, Represent- 
ative from Carter; Therefore, be it 

" Resolved hij the House of Representatives, That we do respect- 
fully, but most emphatically, deny the jurisdiction of said Criminal 
Court in the premises, and the authority of said Court to interfere 
in the discipline and organization of the House of Representatives; 
and direct Captain Heydt, as Sergeant-at-Arms, to tender this 
Resolution to His Honor, Judge Frazier, as his return to said writ; 
and, furthermore, that Captain Heydt be directed to continue under 
arrest, all members detained by him, under said Resolution, until 
otherwise ordered by this House. 

"Adopted, July 17, 1866. 

"A true and correct copy of the original, now on file with my 
papers. "Ed. H. Gowen, 

"P. G. of the H. of R." 

Upon the return of said Heydt, the counsel of said Williams 
moved respondent, as Judge, aforesaid, for an attachment for con- 
tempt, for the body of said Heydt, because of his failure and refusal 
to bring before the Court the body of said Williams, and claim to 
base their right to the motion and for attachment, upon the follow- 
ing sections of the Code of Tennessee: 

"Sec. 3754. Disobedience of the original writ, or any subse- 
quent order thereon, subjects the detendant to commitment for con- 
tempt, and also to a forfeiture of one thousand dollars to the party 
aggrieved, besides rendering him liable for all damages sustained 
in consequence of such disobedience, 

"Sec. 3755. The attempt to elude the service of the writ of 
habeas corpus, or to avoid the effect thereof, by transferring the 
plaintiff to another, or by concealing him, is a high misdemeanor, 
for which the guilty person, and any one knowingly aiding or 
abetting him therein, shall be fined, on conviction, not more than 
one thousand dollars, and imprisonment not more than one year." 

The motion was, by respondent, as Judge, aforesaid, refused for 
the time, and until counsel upon both sides could be heard by re- 
spondent, upon the questions of law involved; that while respond- 
ent might, under the law, have refused to receive said return, he 
was induced to delay the issuance of the writ of attachment for 
contempt, through courtesy to the members of the House, and be- 
cause he felt no sympathy for the petitioner, Williams, believing 
that he had acted in bad faith in refusing to meet the other mem- 
bers of said House. He induced the counsel of said Williams 
not to press their said motion, and tacitly consent that he be re- 
tained in custody, absent from the Court, until respondent, after 



32 HIGH COURT OF IMPEACHjSOiINT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

hearing the argument, should determine the law; and the two suc- 
ceeding days were devoted by respondent, to hearing the argu- 
ments and authorities of counsel upon both sides; and after an 
impartial investigation of the cause and consideration of the argu- 
ments, having been actuated throughout with an honest desire to 
attain and arrive at the law of the case, on the evening of the 
fourth day, he delivered the following as his decision upon the 
petition: 

DECISION OF JUDGE FRAZIEK. 

"The question before the Court has been argued by the counsel, 
on both sides, with much earnestness and zeal, and, I may say, 
with great learning and ability, and they have been listened to by 
the Court with deep attention and interest, and, doubtless, the 
Court has been materially aided in coming to a conclusion upon a 
subject involving not only the liberty of the citizen, but, in some 
degree, the nicely-balanced powers of the several departments of 
the State Government. 

"The writ of habeas corpus has been looked upon by the Amer- 
ican people as one of the chief safeguards of personal liberty, and, 
by the Constitution and laws of this State, it may be demanded of 
every citizen as a matter of right; and no Court is permitted to 
refuse it in any case, except where the applicant is detained by the 
process of the Courts of the United States, or when the applicant's 
petition shows no grounds upon which, by law, relief could be 
granted. Upon the hearing of the application, if it is manifest to 
the Court that the applicant is illegally restrained of his lit)erty, 
the Court is bound to discharge him; but if it appears that he is 
legally restrained, the writ should be dismissed. The petition in 
this case, substantially alleges, that the petitioner. Pleasant Wil- 
liams, is a citizen of the State; that he is a member of the Repre- 
sentative branch of the Tennessee Legislature; that, on the 28th of 
May last, said Legislature adjourned, to meet again on the first 
Monday of November next; that since said adjournment, the Gov- 
ernor, by Proclamation, has convened, or attempted to convene, 
said Legislature; that no quorum had been obtained in the 
House, and tliat less than a quorum of the House had passed a 
resolution authorizing the defendant, Heydt, as Sergeant-at-Arms, 
to bring petitioner, with other absent members, to the House of 
Representatives, to anwer for their disorderly conduct and con- 
tempt; that under said resolution, the defendants, Heydt and 
Frame, arrested petitioner, carried him fiom his home, in Carter 
County, to Nashville, where now they hold him a prisoner; that 
said arrest and imprisonment is illegal, and prays to be released. 
Upon the petition, a writ issued, and was executed on the defend- 
ant, Heydt, requiring him to bring the petitioner, with the cause of 



HIGH COURT OF IMPEACHMENT. 33 



The Peojile of Tennessee vs. Thomas N. Frazier, Judge, etc. 

his detention, before tlie Court; and to this writ, the defendant- 
Heydt, by liis attorney, and without producing tlie body of t])e pe, 
titioner, presented his return, which, in substance, states: 'That, 
by virtue of a resolution of the House of Representatives, directing 
him, as Sergeant-at-Arms, to bring the petitioner, with other ab- 
sent members, to the House, and a wan-ant issued thereon, by the 
Speaker, he had arrested tlie petitioner, and brought him to Nash- 
ville and the House of Representatives; and that since the service 
of said writ, said House of Representatives had passed another 
resolution, directing hira to keep the prisoner, and not produce him 
to the Court, as required by said writ. 

"The necessity for the production of the prisoner in Court, as an 
indispensable part of the return, being waived for the present, let 
us proceed to inquire whetlier the resolutions of the House of 
Representatives and tlie warrant of the Speaker, as alleged in the 
return, is a legal and sufficient authority to the defendant, Heydt, 
for the arrest and detention of the prisoner. In examining this 
question the Court has been sensibly impressed with the delicacy of 
its position, and the magnitude of the issue involved. The decis- 
ion of tlie question either way, has been represented by counsel as 
involving the most serious consequences, not only to the whole 
country, but even to the Court itself. Whatever the consequences 
of the decision may be, they have had, and can have, no influence 
on the mind of the Court, except so far as they may have tended tq 
aid in the proper construction of the law involved in the question. 
The legal existence of the present State Government and its 
several co-ordinate departments is not denied; neither is the right 
and power of the Executive to convene the Legislature in Extra- 
ordinary Session, by his late Proclamation, seriously contraverted. 
But it is insisted by the counsel for the petitioner, that, as he is a 
member of the Legislature, by virtue of the 13th section of the 
2d article of the Constitution of the State, he is absolutely privi- 
leged from arrest, during the session of the Legislature, and whilst 
going to and from, the same; and hence his arrest and detention is 
illegal and void, being in direct violation of an express provision 
of the Constitution. From the 12th section of the same article of 
the Constitution, it will be seen that the Legislature, when duly 
organized, and a sufficient number present to transact business, had 
the power to d,etermine the rules of its proceedings, and punish 
members for disorderly behaviour; and from the construction given 
by Congress to a provision of the Constitution of the United 
States, nearly similar in language to the said 13th section of the 
2d article of the Constitution of this State, as shown and declared 
by the 36th rule adopted by the House of Representatives for their 
government, it seems clear that this privilege or exemption from 
arrest, was intended only to protect the meuiber from arrest by 
other Dersons or authorities, outside of, and disconnected with, the 
3 



34 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Legislature itself; and the Legislature, when duly assembled and 
qualified' to transact their regular business, could arrest, lawfully, 
any one of its members for disorderly conduct. But it is further 
insisted that the House of Representatives has never been organ- 
ized under the Proclamation of the Governor, or at least that it 
has never had a quorum or a sufficient number of its members 
present to transact any business, except to adjourn from day to day; 
and that the resolution, tinder which the petitioner was arrested 
was passed without a quorum, and is void, and can afford no pro- 
tection to the defendant. In answer to this, it is insisted by the 
counsel for the defendant, that the Court has no jurisdiction or 
right to inquire into or decide upon the acts of the Legislature, 
and particularly when these acts are in relation to one of its own 
members; that such action of the Court would produce a conflict 
between the legislative and judicial departments of the Govern- 
ment. It is cheerfully and readily conceded that the Courts have 
no right or authority to interfere with the Legislature in the regu- 
lation of its own body, or the punishment of its members, in any 
manner they may see fit, when it is once organized as a legislative 
body; and it is furtiier admitted, that it is always a delicate and 
unpleasant task for the Court to decide any law, resolution or other 
act of the Legislature to be in conflict with the Constitution, and, 
therefore, void, and should never be done but upon the most satis- 
factory conviction of the illegality of the acts. But, surely, it can- 
not be denied, that from the very organization of the several de- 
partments of government, that it must often become necessary for 
the judicial to determine the validity of the acts of the legislative. 
This is one of the balances of power, so wisely provided by the 
Constitution. The legislative department is governed by law, as 
well as the judicial; and it can pass no law or resolution not 
authorized by the Constitution in express terms, or by reasonable 
and necessary construction or inference. The judicial must declare 
what is law, and in doing this, the Courts are necessarily compelled 
to determine, when the question is presented, whether the law. reso- 
lution or act of the Legislature, under consideration, is valid and 
binding, or not. 

"The resolution, set up in the return, as justification for the 
arrest, and now under consideration, was obviously passed to 
enforce the attendance of absent members. By the last clause of 
the eleventh section of the second article of the Constitution, it is 
provided "that two-thirds of each House shall constitute a quorum 
to do business; but a smaller number may adjourn from day to 
day, and may be authorized, bi/ Imo, to compel the attendance of 
absent members.' Now, it is insisted by the counsel for the peti- 
tioner, that there was no quorum in the House when the resolution 
was passed; and that there is no law passed, either for the govern- 
ment of the House, or otherwise, authorizing a less number than a 



HIGH COURT OF IMPEACHMENT. 35 



The People of Tennessee vs. Thomas N. Fraeier, Judge, etc. 

quorum to enforce such attendance; and hence, the resolution is 
without authority of law, and void. On the otiier hand, it is 
insisted, that, by the common law, by parliamentary usage, and the 
necessity of the case, it may be done; and that the Legislature, or 
any number of its members elect, can do anything in the ordinary 
bounds of legislation, which is not expressly prohibited by the Con- 
stitution. It seems very clear, that in this country, the power of 
the Legislature to make laws is derived alone from the Constitu- 
tion, either expressly granted, or i-easonabiy to be inferred; that 
individual members can do no legislative act, merely from their 
election, no more than a man could act from an appointment or 
election without a commission; hence, before they can pass laws, or 
do any other valid act of legislation, they must unite and form 
themselves into an assembly, and before they can proceed to busi- 
ness, there must be present at least two-thirds of the whole number. 
Now, if the construction contended for, was admissible, that any 
number of membei-s duly assembled, can do any business not ex- 
pressly forbidden, this provision of the Constitution would be 
wholly nugatory. The Constitution permits a quorum to do busi- 
ness, but it surely does not, by express terms or reasonable con- 
struction, permit a less number to do more than to adjourn from 
day to day, and to enforce any law in existence made to compel the 
attendance of absent members. Then, is there any law or rule of 
the House, adopted by a quorum, authorizing a less number of 
members than a quorum to enforce the attendance of members? 
There has been none referred to the Court, nor has it been able to 
find any. Is such law or power inherent in such a number, or may 
it be inferred from the necessity or nature of the case? The Court 
is unable to see it, if it is, or can be inferred. It is readily con- 
ceded that it is the duty, and a high and solenm duty, of every 
member of the Legislature, to attend, when duly called by the Ex- 
ecutive, or otherwise, and to take part in its proceedings, no matter 
what may be before it, or how much he may be opposed to the 
action of the majority; but if his sense of duty and moral obliga- 
tion do not force his attendance, and the Legislature has provided 
no law by which a less number than a quorum of the members can 
enforce his attendance, the evil, no matter how great, must be borne 
till a remedy is legally provided, and his arrest without authority 
of law must be deemed illegal. And it cannot be perceived how 
the declaring by a Court that the acts of one or any number of 
members of the Legislature, less than that authorized by the Con- 
stitution and laws of the Htate, to act in the capacity of a Legisla- 
ture, to be illegal, could be construed to be interfering with the 
privileges of the Legislature, or conflicting with the legislative de- 
partment of the Government, simply because the Court undertakes 
to decide upon questions arising between some of its members. 



36 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Surely it would ncA^er be contended, that if one or many of the 
members of the Legislature, should, during a recess of the Legisla- 
ture, seize and imprison another member, that a Court could not 
interfere for his relief, simply because they were all members of the 
same Legislature. Members of the Legislature are, in their indi- 
vidual capacity, as amenable to law as other persons, and have na 
privileges above other citizens, except while in the capacity of legis- 
lators, in session, or going to and from the place of assembly. But 
it is said that there is no sufBcient evidence before ihe Court show- 
ing that the resolutions set up in the return as a defense, were 
passed by a less number than two-thirds of the whole Legislature: 
and that, in the present state of the pleadings in this case, it should 
be taken that they were passed by a quorum. The petitioner al- 
leges, as one ground of the illegality of his restraint, that he was 
arrested under an order or resolution passed by a number of the 
members of the Legislature, less than a quorum. The return of the 
defendant does not deny this allegation, nor is the fact that the 
resolution was passed by a quorum affirmed in the return, except 
inferentially; and it was not denied, in point of fact, in the argu- 
ment. The fact that no quorum had been obtained was daily pub- 
lished in the legislative organ, and it may well be inferred from the 
resolution itself. It directs process against various absent mem- 
bers, indicating that the desire for their attendance was to secure a 
quorum. It is true, tliat the resolution charges the absent members 
with disorderly conduct and contempt. These are indefinite ex- 
pressions, and might be applied to an obstinate refusal to appear. 
But there seems to be a distinction drawn by the Constitjition be- 
tween disorderly conduct in the Assembly, and a mere refusal to 
attend. In the former, they had to be presented by the House; in 
the latter, their attendance is to be enforced by laws passed for that 
express purpose. In view of all these facts and circumstances, it 
would be a very technical adherence to the rules of pleading and 
evidence, to hold that these resolutions were passed by a quorum. 

'Upon the whole case, after mature and anxious reflection, and 
surely unbiased and uninfluenced by any external circumstances or 
results, but alone influenced by a solemn conviction of public duty, 
the Court is constrained to decide that the return shows no legal 
ground for the restraint of the petitioner, and aflbrds no legal jus- 
.itification to the defendant, for the arrest; and as the defendant has 
fialed to produce the prisoner before tho Court, as required by the 
writ, an attachment must issue against him for contempt." 

And having reached the conclusion announced in said opinion, 
he, therefore, issued said writ of attachment, upon the renewed 
motion of the counsel for petitioner, and precept for the body of 
said Williams, who had been so held up to this time, to the Sherifl", 
as follows: 



HIGH COURT OF IMPEACHMENT. 37 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

*' STATE OP TENNESSEE: 
" To the Sheriff^ of Davidson County: 

."Whereas, A writ of habeas corpus was issued by me, Thomas 
N. Frazier, Judge of the Criminal Court, etc., on tlje 16th day of 
July, 18fi(i, commanding Wm. Heydt, to bring before me the body 
of one Pleasant Williams, who, it was alleged, was illegally re- 
strained of his 'liberty by said Heydt; and tvhereas, said Heydt 
made a return mithout bringing the body of said Williams, and 
which return shows that said Williams is held under and by a reso- 
lution of the House of Representatives of the State of Tennessee; 
but it being expressly charged in the petition, that this resolution 
was passed by less than a quorum, and not being denied by the re- 
turn, and the undersigned judge being satisfied from the whole 
case, that said Williams is held under a resolution of persons who 
are members of the Legislature, but that there was no quorum, the 
object being to procure a quorum; and the undersigned judge being 
of opinion that Ie.ss than a quorum could not arrest another mem- 
ber, there having been no kao passed, authorizing it; and therefore, 
that said return is insufficient, and that said Heydt is in contempt; 
and the petitioner, by his counsel, having moved for a writ of at- 
tachment, to attach the body of said Heydt: 

" These are, therefore, to command you, the Sheriff of Davidson 
County, to attach the body of said Wm. Heydt, and bring him 
before me to answer for his 'contempt; and that the Sheriii' also 
bring up the body of said Pleasant Williams, to the end that he bo 
discharged, and no longer wrongfully restrained of liis liberty; and 
that you execute this writ and make return thereof, instanter, be- 
fore me, at the Court House in Nashville. 

"Given under mv hand and seal, this lOth day of July, 1866. 

"THOMAS N. FRAZIER, 

''Judge of the Criminal Court. ^' 

And the same was returned, as follows; 

First Return. — " Came to hand the same day issued, and exe- 
cuted in part by taking the body of Capt. P. Williams and bring- 
ing him before the Hon. Thos, N. Frazier by command. Heydt 
lias not vet been found. "W. C. Shaw, 

"July 'l\), 1866. ''Deputy Sheriff" 

Second Return. — "Since last' evening I have executed the within 
writ of attachment, by taking the body of William Heydt, and 
have him here now before vour Honor, to be disposed of as the law 
directs. This, July 20th, 1866. "W. C. Shaw, 

"Deputy Sheriff':' 



38 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

And thereupon, respondent, as Judge aforesaid, delivered the fol- 
lowing as his opinion : 

JUDGMENT OF THE COURT. 

"^The Slate of Tennessee on the relation of Pleasant Williams vs. 
' William Heydt and Thomas Frame: 

^^Petition for Writ cf Habeas Corpus. 

"Upon the petition in this cause, a writ was issaed to the Sheriff 
of Davidson County, requiring him to make known to the defend- 
ants, Heydt and Frame, that they were required to bring the body 
of the petitioner, before me, at the Court House in Nashville, on 
the I7th of July, 1866; which was returned, executed on the de- 
fendant Heydt, Frame not to be found. On tlie 17th of July, 1866, 
the defendant Heydt, by his attorney, without producing the peti- 
tioner before the Court, presented his return; and the necessity for 
the production of the petitioner, being for the present waived, the 
legal questions involved in the return were argued at great length, 
by counsel on both sides; t])e Court delivered its opinion in writ- 
ing, upon the sufficiency of the return, which is referred to, and 
made a part of this judgment; and for the reasons therein assigned, 
the Court lield the return was insufficient to justify the arrest and 
detention of the petitioner, and ordered an attachment against the 
defendant, Heydt, which was returned executed in part, by produc- 
ing the hody of the ])Ctitioner before the Court, on the 19th of 
July, i866; and therefore, the said Pleasant Williams was released 
and discharged from custody by the Court; and said attachment, 
being returned again on the 20th of July, 1866, executed in full by 
arresting, and bringing the body of the defendant, Heydt, before 
the Court; and the Court being satisfied froni the return and the 
whole case, that the delendant, Heydt, had intended no contempt of 
the authority of the Court; that the arrest of the petitioner, and 
subsequent detention, was done V)y him, under what he supposed 
was legal authority; it was, therefore, ordered and considered, that 
the said defendant, Heydt, be discharged and released from the at- 
tachment; and tl)at he pay the costs of this application; which costs 
were paid over by him, in the presence of the Court, and the de- 
fendant was permitted to go hence, without delav. 

"July 20th, 1866. "THOS. N. FRAZIER, 

Judye of the Criminal Court for 
Davidson and Huthetford Counties," 

Respondent would further answer and sliow, that on the 15th 
day of July, 1866, the following petition was presented to respond- 
ent, as Judge aforesaid, in behalf of Hon. A. J. Martin : 



HIGH COURT OF IMPEACHMENT. 39 



The People of Tennessee vs. Thomas N. Frazier, Jmlge, etc. 

*'To the Ron. Thomas N. Fmzier, 

''Judge of the Criminal Court., etc: 

"Your petitioner, A. J. Martin, who is a citizen of Jackson 
County, in the State of Tennessee, would show unto your Honor, 
that he was elected as a member to the Lower House of the Legis- 
lature, of the State of Tennessee, at the last election held for the 
said County of Jackson; that about tlie middle of May last, the 
Legislature adjourned over until tlie first Monday in November 
next thereafter; that since that time, the Governor, by Proclama- 
tion, ordered the Legislature to convene at Nashville, on the 
fourth Monday of July, 1866. Some of the members, but not 
enough tQ, make a quorum, in pursuance of said Proclamation, came 
to Nashville. Petitioner did not come. Upon ascertaining that 
they had not a quorum, they, the members present, passed a resolu- 
tion, ordering one William Heydt to arrest petitioner, with other 
members who were not present. That said Heydt, under the direc- 
tion of said members, did, on the — day of July, 1866, by his 
agents, arrest petitioner, at his home in Jackson County; that he 
was immediately brought to Nashville, and has ever since been kept 
a prisoner, and is now a prisoner, in the custody of said Heydt; 
that in view of a writ of habeas corpus being sued out, or which 
had been sued out by another member, conllned with petitioner, 
said members at the Capitol, passed a resolution, in which tlioy 
style themselves a House of Representatives, and in and by said 
resolution, ordered petitioner with others, to be still kept a prisoner. 

"Your petitioner expressly charges, that the persons who passed 
these resolutions, were not a House of Representatives; that they 
did not have a quorum; that at no time since the Proclamation of 
the Governor, has there been a quorum present; that fifty-six, or 
two-thirds, have not been present, or were not present at either of 
said times, when said resolutions were passed; that the Speaker 
had decided there was no quorum, and that the object of the arrest 
was to make a quorum. 

"Your petitioner expressly charges, that said body of men, less 
than a quorum, had no power or authority of law for his arrest. 

"Your petitioner, expressly charges, that lie is illegally restrained 
of his liberty, at the Capitol, at Nashville, by William Heydt. 

"That, according to the Pest of his iuformatiou and belief, he 
was arrested under, and by authority of a resolution in the follow- 
ing words : 

''Resolved hy the House of Hepresentatives of the State of Tennes- 
see, That the Speaker be directed to issue warrants of arrest for 
Messrs. Martin, Representative from Jackson County; Brittle, from 
Smith County; Marshall, from Benton and Humphreys Counties; 
Porter, from Henry County; Overstreat, from Overton; and Wil- 
liams, from Carter, refractory members of this House; and that 



40 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Capt. William Heydt, as Sergeant-at-Arms, be authorized to em- 
ploy such assistance, as may be necessary to cari'y into effect, the 
orders of this body; and that said Heydt, as Sergcant-at-Arms, 
bring said members before this house, to answer for their disorderly 
conduct, and contempt of this House. July 11, 18G6. 

"And petitioner expressly charges, that this resolution was not 
what it purporsts to be, a Resolution of the House of Representa- 
tives, but that, in fact, it was passed by less than a quorum, after a 
formal decision that there was no quorum. 

"Petitioner further avers, that the validity or legality of this 
arrest, lias not been adjudged upon a prior proceeding of this, to 
the best of petitioner's knowledge and belief; and that this is the 
first application for the writ of habeas corpus. 

"The premises considt^red, let said William Heydt, who is now 
in Davidson County, be made defendant, let the writ of habeas 
corpus issue, to have petitioner brought before your Honor, that 
justice may be done in the premises; and that he may be no longer 
restrained of his liberty; and let him answer this petition." 

"State of Tennessee, Davidson County: 
"A. J. Martin, makes oath, that the facts stated in the foregoing 
petition are true, to the best of his knowledge and belief. 

A. J. Martin. 
" W. L. Mathews, Justice of Peace. 

And thereupon, respondent, as Judge aforesaid, issued the follow- 
ing precept to the Sheriff of Davidson County : 

" State op Tennessee, Davidson County: 
"To the Sheriff of said County of Davidson : 

"Whereas, A. J. Martin, has presented to me, his petition sworn 
to, in which it is alleged, that he is a citizen of Jackson County, 
Tennessee, and that he has been arrested, and illegally restrained 
of his lihcrtv, by one William Heydt, in the Capitol, in the City of 
Nashville, iri said County of Davidson, you are hereby commanded, 
to read and make known, the contents of this writ to the said 
Heydt, and command him to bring the body of the said A. J. Mar- 
tin, before me, at tlte Circuit Court room, in the Court House, in 
the City of Nashville, in said County of Davidson, instanter, 
together with the cause of his said arrest and detention, that he 
may be dealt with as the law directs When and where you will 
return this writ, with a return thereon, of your doings in the 
premises. 

"This igthday of July, 1866. 

THOMAS N. FRAZIER, 
'■^ Judge of the Criminal Court" 



HIGH COURT OF IMPEACHMENT. 41 



The People of Tennessee vs. Thomas N. Frfizicr, Judge, etc. 



And the spme was returned on the 20th day of July, 1SG6, as 
follows: 

"Came to hand July 19, 18GG, and executed this writ as com- 
manded, and the defendant, William Heydt, is now before the Court 
for trial. I have also brouo-ht the body of the petitioner, A. J. 
Martin, beibre the Court, to be disposed of as the law directs. 
This 2Uth day of July, 18G6. 

"W. C. Shaw, 

"Deputy Sheriff'. 

And tlicreupon, respondent, as Judfi:e aforesaid, announced the 
following judgment: 

"A. J. Martin vs. William Heydt. 

'^Petition/or tvrif of Habeas Corpus: 

"In this case a writ was issued upon the foregoing petition, and 
placed in tiie hands of the Sheriif of Davidson County, on the 19th 
of July, 18GG, and returned by said Sheriff on the 20th of July, 
1866, before me, at the Court House, in Nashville, shewing that it had 
been executed on the defendant; and the said defendant, Heydt, 
having appeared before me, with the body of the petitioner, A. J. 
Martin, as required by this writ; and the defendant, Heydt, declines 
to make defense -to his action in the premises, and agrees that it 
abide the decision of the cause of Pleasant Williams, decided by 
this Court on yesterday, on a precisely similar application, and in- 
volving the same facts; and the Court beina' fully satisfied, from the 
reasons assigned in said case of Pleasant Williams, and which is 
hereby referred to as part of this judgment, that the petitioner is 
illegally restrained of his liberty, it is therefore considered by me, 
that the said A. J. Martin be released and discharged from the cus- 
tody of the defendant, Heydt, and go hence without day; and that 
the defendant, Heydt, pay the costs of this application, which he at 
once paid in the presence of the Court, and the said Heydt is hence 
discharged. This July 20th, 18GG. 

"THOS. N. FRAZIER, 
''Judge of the Criminal Court for Davidson 

"and Eutherford Counties.''^ 

Respondent would state, that the case of said Martin, was not 
argued, or sought to be, by counsel for either side, but v»'cnt off, on 
the reasons given in the case of Williams, and without any return 
of the reason or manner he was held or restrained of his liberty. 

Respondent would now submit to the Court the following sections 
from the Code of Tennessee, which then and now, he conceives to 
be obligations imposed upon him by law, and defining his duties as 
a Judge, in cases of a habeas corpus: 



42 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

"Sec. 3720. Any person, imprisoned or restrained of his liberty, 
under any pretense whatsoever, except in cases specilied in the next 
section, may prosecute a writ of habeas corpus, to inquire into the 
cause of such imprisonment and restraint. 

"Sec. 3721. Persons committed or detained, by virtue of process 
issued by a Court of the United Slates, or a Judge thereof, in cases 
where such Judge, or Court, have exclusive jurisdiction, by the 
commencement of suits in such Courts, are not entitled to the ben- 
efits of this writ. 

"Sec. 3722. Application for the writ, shall be made by petition, 
signed either by the party for whose benefit it is intended, or some 
person on his behalf, and verified by affidavit. 

"Sec. 3729. It is the duty of the Court, or Judge, to act upon 
such applications instanter] and a wrongful and willful refusal to 
grant the writ, when properly applied for, is a misdemeanor in 
office, besides subjecting the Judge to damages at the suit of the 
party aggrieved. 

"Sec. 3746. At the time of making the return, the person on 
whom the same has been served, shall, also, "produce the body of the 
'pei'son detained, according to the command of the writ, or show 
good cause for not doing so. 

"Sec. 3747. If the cause shown for not producing such person, 
be sickness, or infirmity, the fact shall be verified by affidavit, and 
other evidence, if required. 

"Sec. 37()1. The party detained shall be remanded to custody, 
if it appears he is detained — 

'1st. By virtue of process issued by a Court, or Judge of the 
United States, in a case where such Court or Judge, has exclusive 
jurisdiction. 

'2d. Where the time during which said party may be legally 
retained, has not expired. 

'3d. In every case in which the detention is aidhorized by laio.' 

"Sec. 3762. The costs of proceedings under this chapter, except 
whenever otherwise expressly provided, shall be adjudged as the 
Court, or Judge, may think right, and taxed and collected as in 
other cases." 

Also, Respondent submits to the Court, the high and solemn ob- 
ligation imposed ui)on him, as a Judge of the State, to see that all 
the rights of the citizens are administered. By section 8 of the 
"Bill of Rights," of citizens, it is declared: "That no free man shall 
be taken or imprisoned, or disseized of his freehold, liberties, or 
privileges, or outlawed or exiled, or in any manner destroyed, or 
deprived of his life, liberty, or property, but by the judgment of his 
peers, or the laio of the laml.^' 

It will be evident to the Court, from a very slight observation 
of the sections of the Code relating to habeas corpus, and the con- 
stitutional clause relating to this writ and the liberties of the citi- 



HIGH COURT OF IMPEACHMENT. 43 



The People of Tennessee vn. Thomas N. Frazier, Judge, etc. 



zen, that Respondent, as Judge, aforesaid, was placed under the 
hio-iiest and holiest oblicrations of law, as well as penalties, to pro- 
tect the citizen against every illegal restraint put upon his liberties 
or privileges; and that, in any case of doubtful legal authority to 
restrain a citizen, it would be the duty of the Judge, or Court, to 
order his release; because it is more in harmony with the spirit of 
of our laws and institutions, that if an error be committed, that it 
be committed in favor of liberty and freedom. 

Respondent admits that he knew that both Houses of the Legis- 
lature, when constitutionally organized and duly assembled, with a 
quorum present, possessed high and important privileges; but he 
did not know that individual members had other or greater privi- 
leges than a private citizen, until a sufficient number of them had 
assembled together, to constitute a constitutional body, competent 
to act. Respondent admits, that he was bound to know, and that 
he did know, at least, some of the laws of the land, as well as some, 
if not all, the provisions of tlie Constitution of the State of Tennes- 
see. But he denies, that he did know of any provisions of the 
Constitution, or that there is any provision in the Constitution, by 
which a less number than two-thirds of either branch of the Legis- 
lature, is authorized to pass any law or resolution, or do any other 
legislative act, except to adjourn from day to day. It is admitted, 
that, by the eleventh section of the Constitution, that the Legisla- 
ture may pass a law, by which, or by the provisions of which, a less 
number than two-thirds of either House may compel the attend- 
ance of absence members; but it confers no power upon such less 
number to enforce attendance by their own mode, by warrant, reso- 
lution, or other process. They can only enforce the law, when it is 
passed — not pass it; and Respondent denies, that any such law ex- 
ists on the Statute Books of Tennessee; or, if it does, that he had 
any knowledge of such law. Respondent further denies, that he 
knew, at the time of the issuance of the writ, anything in relation 
to the rules of the House; but he did know, that a rule of the 
House was no law, unless it had been passed by l)oth Houses, in the 
constitutional way. He admits, that he knew that it was one of 
the rights and privileges of all duly-assembled legislative bodies, to 
enforce the attendance of abscLt members; but he did not know, 
that a less number than a quorum could pass laws for that purpose. 
Respondent admits, that he issued the writ, after deliberation, wil- 
fully; but he again denies, that it was issued either corruptly, or 
maliciously, or feloniously, as is so often charged. It is substan- 
tially admitted, in the starting point of the first Article of Im- 
peachment, that there was no quorum in the House at the time 
Williams was arrested, or at the time the resolution for his arrest 
was passed; and Respondent asserts, thiit he did not know that a 
less number of members than a quorum, possessed the privileges 
of a duly organized House of Representatives. He denies, that 



44 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



he had any intent, or desire, to interfere with their priviiesjes; and 
asserts, that if he had known of any law, obligatory usage, or cus- 
tom, by which the members, less than a quorum, were authorized to 
arrest an absent member, merely for absence, he would have refused 
the writ. Respondent most positively denies, tliat he had any de- 
sire, or intention, of ^defeating the presence of a quorum in the 
House; and the fact, that he permitted the members, and their 
agent, Heydt, to hold Williams in custody for nearly, or quite, 
three days, while his case was being argued and deliberated upoa 
by Respondent, shows that Respondent had no such intent; for, 
during that time, as Respondent is informed and believes, a quorum 
was obtained in the House, and the Constitutional Amendment 
was duly ratified by the House long before the said Williams was 
dischaiged under the writ. Respondent, further answering, ad- 
mits, that, after hearing the argument of counsel on botli sides, 
and after examining all the authorities produced, or which he 
could find, and after giving the question a lull, candid, and deliber- 
ate consideration, he was honestly of the opinion, that the return 
made by the said William Heydt, to the writ, was insufficient, and 
presented no sufficient legal sTounds for tlie arrest and detention 
of said Williams, and so decided. Respondent, further answering, 
respectfully insists, that his decision upon the return made to the 
writ, was legal and right; that there is no law, custom, or parlia- 
mentary usage in Tennessee, under which the arrest of Williams 
can be justified. 

By reference to the 8th section of the Bill of Rights of Tennessee, 
as set out before, it will be seen that it is there emphatically de- 
clared, "That no free man shall be taken, or imprisoned, or deprived 
of his life, liberty or property, but by the judgment of his peers, or 
the law of the land." From this it would seem, that before a man 
can be arrested, there must be some law authorizing it. It surely 
can not be done at the mere will of one or more men. The mere 
failure, or even refusal, of a member of the Legislature to attend, is 
nowhere declared to be a crime. In the first Article of Impeach- 
ment, the arrest of Williams is attempted to be justified, under the 
the 11th and 12th sections of the Second Article of the Co)istitu- 
tion. In those two sections, it is seen, that two-thirds of each 
House shall constitute a quorum to do business, but a smaller num- 
ber may adjourn from day to day; and that smaller number may be 
authorized, hy luio, to compel the attendance of absent members. 
Now, it is submitted, that no fair or rational construction of these 
provisions, could mean more than, that a less number than two- 
thirds could execute or enforce any law that might be enacted for 
that purpose. The 12th section provides for the making of rules 
by each House, for the government of the House in its mode of pro- 
ceeding, and for punishing its members for disorderly behavior: the 
two sections, taken together, making an obvious distinction between 



HIGH COURT OF IMPEACHMENT. 45 

The People of Tennessee vs. Tliomas N. Frazier, Judge, etc. 

absence and disorderly conduct; in the latter case, it authorizes 
each House — tiiat is, when there is a quorum present — to punish, at 
their discretion; in the former, for absence, neither House, sepa- 
rately, can punish for it, or enforce the attendance; but the attend- 
ance must be compelled, or enforced, by virtue of authority derived 
from both houses, viz: by a law duly passed by both Houses for that 
purpose. It is different as the two Houses of Congress, under tlie 
the Constitution of the United States. By the lirst Article and 5th 
section of the Constitution of tlie United States, it is provided, tliat 
a majority of each House shall constitute a quorum to do business; 
but a smaller number may adjourn from day to day, and may be au- 
thorized to compel the attendance of absent members; not by law, 
as in Tennessee, but by a rule of each or either of the Houses, or 
by resolution of a majority, or by any other mode that either House 
might adopt. And under this ]>rovision of the Constitution, a rule 
was adopted by the House of Representatives, enforcing the attend- 
ance of members by arrest; but even under that rule, fully autlior- 
ized by the Constitution, the absenting member was released from 
custody so soon as he was brought into the House, doubtless under 
the rational conviction that, in a representative government, repre- 
sentation must be free, and not under duress. Respondent, further 
answering, states, that when said Heydt. the alleged Sergeant-at- 
Arms, by his Counsel, presented the resolution passed by tiie mem- 
bers present, of the House, as a return to the writ of Jtabeas corpus, 
he failed, as before stated, to produce the body of Williams, as he 
was commanded by the writ to do, and whi^h was a plain and palp- 
able disobedience of the writ, and subjected him, by the laws of 
Tennessee, to commitment for contempt, to a forfeiture of one thous- 
and dollars, and to damages to the party aggrieved. But, as before 
stated. Respondent induced Williams' Counsel to waive the appear- 
ance of Williams, until the Respondent could iiear and determine 
whether he was restrained of his liberty by legal authority or not, 
before Respondent would proceed against said Heydt, or enforce the 
appearance of Williams. And Respondent admits, that after hear- 
ing- the case fully argued, and mature deliberation, as before stated, 
given to the case, he was conscientiously of the opinion, as he is yet, 
that the causes and authority alleged in the return for the restraint 
of Williams was insufficient. Respondent did issue process to the 
Sheriff of Davidson County, requiring him to bring the body 
of Heydt, as well as of Williams, before Ecspondent; the said 
Heydt to answer for his disobedience of the writ, and the said Wil- 
liams to be discharged; not corruptly, maliciously and feloniously, 
as charged against him, but simply, as a matter of course, to effect- 
uate and carry out the judgment he had rendered upon the hearing 
of the cause. 

Repondent further admits, that upon this writ the saidJHeydt and 
Williams were brought before respondent, and the said Williams 



46 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



was discharged. But lie most positively denies that the said Heydt 
was fined one cent for contempt, as is alleged in the second Article 
of Impeachment; but alleges, that, to the reverse of what is charg- 
ed, he informed said Heydt that respondent was satisfied that he 
had acted under the instructions of the members of the House in 
good faith; and instead of enforcing upon him any of the penalties 
prescribed by the Statute, respondent discharged him, without com- 
mitment or one cent of fine, merely giving judgment against him for 
ten dollars and costs, which was about one- half the costs in the case, 
and without any order that he should be committed till it was paid, 
as is erroneously charged. Respondent, further answering to the 
charges in the second Article of Impeachment, denies that he exer- 
cised illegal power, or assumed unprecedented judicial functions, in 
the discharge of Williams, as is charged in said Article. He in- 
sists that he exercised nothing but the ordinary powers conferred 
on judicial officers in like cases; and he is unable to perceive how 
it could be considered an exercise of illegal power in a Judge to 
discharge a man from imprisonment, if the party was illegally re- 
strained of his liberty. Surely, this respondent, as a Judge of gen- 
eral jurisdiction, had this power; and the only question is, was he, 
the said Williams, illegally restrained of his liberty? If he was, it 
is insisted that it was one of the common duties and powers of a 
Judge to release him; if he was legally restrained of his liberty, 
then respondent exercised one of his ordinary powers, erroneously, 
for he asserts that he exercised his best judgment upon the question, 
and decided it as he honestly thought tiie law was, with no im- 
proper, corrupt or malicious, dishonest or felonious motive, as is 
alleged so repeatedly against him. It is admitted, that respondent 
released Williams trom custody, as heretofore stated, upon an hon- 
est conviction that he was illegally restrained of his liberty; and 
that the said Heydt was brought before respondent to answer for 
his disobedience of the writ of habeas corpm; but his appearance 
was more from form, to carry out the judgment rendered, than any 
thing else, as he was at once discharged, witliout fine or commit- 
ment, or other harsh treatment, upon the payment of a part of the 
costs, as before stated. Respondent denies, that he knew that Capt. 
Heydt was Sergeant-at-Arms to the House of Representatives, nor 
did he know that any such office existed in Tennessee, further than 
in the Fesolution offered, as a return to the writ of habeas coijnis — 
Capt. Heydt was directed to present the resolutions as ''Sergeant- 
at-Arms.^' Respondent admits, that from said resolution presented 
as a return to tlie writ, he knew that the members of the House 
present, who did not claim to be a quorum, denied respondent's 
jurisdiction, upon the habeas corpus, and that they had directed 
Capt. Heydt, to hold the custody of Williams. But respondent 
waived all this, and took no steps to enforce the attendance of 
Williams, until the case was fully heard, as before stated. Respond- 



HIGH COURT OF IMPEACHMENT. 47 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

ent admits, that he did know, or at least he believed that he knew, 
the powers and privileges of the House of Representatives, in rela- 
tion to enforcing the attendance of absent members; but he denies, 
that he had any knowledge of the mode adopted by the members in 
Williams' case, that was authorized by law. Respondent denies 
that he knew that the House of Representatives had jurisdiction of 
Williams, as he was informed, and so believed, that there was not a 
quorum present, to constitute a House, or to take jurisdiction over 
him, or do any other business, except to adjourn. 

Respondent is well aware that the present Staijte Government 
came into existence, after a protracted war — and against the wishes 
of many persons — that before the time of its existence, he, in com- 
mon with many of his fellow-citizens, had contributed whatever of 
capacity he possessed, much of his time and labor, to assist in that 
result — that he had, before its existence, put himself, in connection 
with those whose efforts were directed to that end. And long be- 
fore, even its most ardent friends, could do no more than hoj^e for 
its success, and when to indulge such a hope publicly, met with 
frowns of discouragement, and actual danger, he accepted in its 
provisional government, a judicial position, in the hope and desire, 
that his efforts in that position, added to those of others, might re- 
sult in a permanent and enduring State Government. That as a 
citizen and officer, after a State Government was inaugurated, and 
established, he, as before, contributed his personal and official influ- 
ence, 10 sustain and support it, and can now call to mind, no act of 
his, relating thereto, either of official or unofficial nature, the object, 
intent and design of which, was not to sustain or uphold this Gov- 
ernment, which, perhaps, he yaiuly felt, he had contributed to create 
and build up. 

Respondent would further state, that at no time, did he sympa- 
thize with those in their revolutionary acts, who refused to meet 
other members of the General Assembly, on said 4th of July, 1866, 
in accordance to the Proclamation of His Excellency, the Gover- 
nor; that during the progress of the proceedings before him, on 
said petition of habeas corpus, he so expressed himself, and felt a 
sense of regret, that a faithful and honest discharge of his duties as 
a Judge, impelled him to the judgment he gave. 

While this respondent now claims and insists, that the opinion 
and judgment, given by him, as Judge aforesaid, upon said two 
petitions, and all his acts therein and thereunder, whether relating 
to the law or the persons, were correct, and in accordance with the 
laws and constitution, he will still insist, that he is not to be con- 
sidered as guilty or innocent, according to the supposed correctness 
or incorrectness of his opinion of the law expressed by him, for it 
would follow that error in opinion, however honestly entertained, 
might be a crime, and every Judge in the State would be liable to 
impeachment, for all commit errors in their judgment of the laws. 



48 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



Respondent now, with an humble trust in Providence, and a con- 
sciousness that he has discharged all his official duties, to llie best 
of his knowledge and abilities; and that he has intentionally com- 
mitted no violation of the laws of his land, no breach of the privi- 
leges of the House of Representatives, no effort to defeat the opera- 
tions of any department of the State Government, and confiding in 
the integrity, independence, and impartiality of his Judges, and 
that they will hear patiently, and conscienciously determine his 
case, unmoved by party spirit, prejudice or political motives, gov- 
erned throughout, by that moral and Christian rule, that each will 
render that justice to this respondent, which he would wish to re- 
ceive, he submits himself to their decision, conscious that in a little 
time his accusers, his judges and himself, will be summoned before 
an Omnipotent Judge, to whom each will be required to answer, for 
the deeds of this, and all other days, and hopes that himself and his 
judges, at that awful hour, can appeal to the rectitude and purity, 
of this day's work, with an approving consciousness. 

THOMAS N. FRxVZIER. 

Whereupon, leave having first been asked and obtained, 

The Managers on the part of the House of Representatives, by 

their Counsel, appeared, and filed their replication to the aforesaid 

answer, in the words and figures as follows: 

Before the ^Senate of the State of Tennessee, sitting as a High Court 
of Impeachment, in the matter of Impeacltment of the Hon. 
Thomas N. Frazier, Judge, etc.: 

Replication, by the Managers on the part of the House of Repre- 
sentatives of the State of Tennessee, to the answer and plea of 
Thomas N. Frazier, Judge of the Criminal Court for the County of 
Davidson, and State of Tennessee, to the Articles of Impeachment 
against him, by them exhibited, in the name of themselves, and all 
the people of the State of Tennessee, reply, that the said Thomas 
N. Frazier is guilty in such manner as he stands Impeached, and 
that said Managers will be ready to prove their charges against 
him, at such convenient time and place, as shall be appointed for 

that purpose. W. J. Smith, I j/-^.„„_,.„ 

J. A. FusoN,r'^'*'^'^^"*- 

The Court then resumed the consideration of Motion No. 15. 
Pending which, 

Mr. Trimble, one of the Counsel for the prosecution, moved the 
Court adjourn until to-morrow, at 9 o'clock, A. M. 



HIGH COURT OF IMPEACHMENT. 49 

The People of Tenacssee vs. Thomas N. Frazier, Judge, etc 

The motion prevailed. 

Whereupon, it was ordered by the President, that the Court 
stand adjourned until to-morrow at 9 o'clock, A. M. 

JOSHUA B. FRIERSON, 

President of the Court. 



WEDNESDAY, MAY 8, 1867. 



Tlie Senate, as a High Court of Impeachment, met pursuant to 
its adjournment, at 9 o'clock, A. M. 

The Managers for the State, and their Counsel, and the Re- 
spondent, and his Counsel, being present in the Court, 

The roll was called. 

Present 20 

Absent 1 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Frazier, Hall, Johnson, Keith, 
McKinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson and the President. 

Member absent, was: 
Cypert. 

The President announced a quorum present, and the proceedings 
of yesterday were read and approved. 

The Court then resumed the further consideration of Motion 
No. 15. 

The member from Grainger, Mr. Senter, offered Motion No. 16, 
to-wit: 

[No. 16.] "Eesolved by the Court, That in the deliberation of 
all questions submitted to this Court, that the Counsel, and all 
4 



50 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

spectators, and tlie Reporters for the press, be excluded from the 
Senate Chamber." 

The question on the adoption of the motion, was taken bj ayes 
and noes. 

Ayes 14 

Noes 5 

Members voting aye, were: 

Aldridge, Bosson, Gate, Hall, McKinney, MeElwee, Nelson, 
Powell, Patterson, Senter, Spence, Thompson, Robinson and the 
President. 

Members voting no, were: 

Carrigan, Johnson, Keith, McFarland and Smith. 

And the motion was adopted as a Rule. 

At the request of the President, the Senate Chamber and gallery 
was vacated by all, except the sworn members and ofl&cers of the 
Court, and the doors were ordered to be closed, and the Court pro- 
ceeded to deliberate upon the proposition contained in Motion 
No. 15. 

The President announced the question before the Court to be as 
follows, towit: 

"Shall the motion, made by the Managers on the part of the 
House of Representatives, to exclude the Senator from Knox and 
Roane, (Mr. Frazier,) from sitting as a member of the Court, on 
the grounds of relationship and bias, to the Respondent now on 
trial, be sustained?" 

And on the question, the vote was taken by ayes and noes. 

At the request of the member from Knox and Roane, Mr. Fra- 
zier, he was excused from voting on the proposition. 

Ayes 13 

Noes 

Members voting aye, were: 

Aldridge, Bosson, Cate, Hall, Keith, McKinney, McElwee, Nel- 
son, Powell, Patterson, Se,nter, Spence and Robinson. 

Members voting no, were: 



HIGH COURT OF IMPEACHMENT. 51 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Carrigan, Johnson, McFarland, Smith, Thompson and the 
President. 

And the motion was sustained, and the member from Knox and 
Roane, Mr. Frazier, was excluded from serving as a member of the 
Court. 

On motion of the member from White, Mr. Bosson, the doors 
were ordered to be opened. 

Whereupon, it was ordered by the President, that the Court 
stand adjourned until 9 o'clock, A. M., to-morrow, under the Rules. 

JOSHUA B. FRIERSON, 

President of the Court. 



THURSDAY, MAY 9, 1867. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A. M. 

The Hon. J. B. Frierson, President, in the Chair, 
The roll was called. 

Present . 19 

Absent _ 1 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson and the President. 

Member absent, was: 
Cypert. 

The parties all being before the Court — the Managers on the 
part of the House of Representatives and their Counsel, and the 
Respondent and his Counsel, 



52 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The Hon. J. B. Frierson, the President, proceeded to announce 
the decivsion of the Court upon the matters involved in Motion 
No. 15, in words as follows, to- wit: 

"After mature consideration of the question, the Court sus- 
tains the motion made by the Managers on the part of the House 
of Representatives; and the decision of the Court is recorded in 
the minutes of yesterday, which minutes the Clerk will now pro- 
ceed to read." 

There being a quorum present, the minutes of yesterday were 
read. 

The member from Lincoln, Mr. Carrigan, presented Motion No. 
17, for the consideration of the Court, to-wit: 

[No. 17.] "Besolved, That the record of yesterday be amend- 
ed as follows, to-wit: ' That Dr. B. Frazier was denied the right 
to participate in the trial now pending before this Court, by a 
vote of 13 to 6, twenty members of the Impeachment Court 
havingr been sworn in." 



^C) 



The member from Grainger, Mr. Senter, presented Motion No. 
18, and offered the same in lieu of Motion No. 17, to-wit: 

[No. 18.] "Besolved by the Court, That the journals of yes- 
terday be a})proved." 

The motion offered was adopted in lieu; and on the adoption 
of the motion, (No. 18,) the question was taken by ayes and noes. 

Ayes 17 

Noes 2 

Members voting aye, were: 

Aldridge, Bosson, Gate, Hall, Johnson, Keith, McKinney, Mc- 
Elwee, McFarland, Nelson, Powell, Patterson, Smith, Senter, 
Spence, Robinson and the President. 

Members voting no, were: 
Carrigan and Thompson. 



HIGH COURT OF IMPEACHMENT. 53 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

And the motion carried, and the Journals of yesterday were 
approved. 

The member from Lincoln, Mr. Carrigan, presented Communi- 
cation No. 1, in the nature of a protest, to-wit: 

[No. 1,] "Mr. President: — The undersigned, a member of this 
Court, and a Senator of the State of Tennessee, does solemnly 
protest against approving the records of the Court made yester- 
day, in the case of Dr. B. Frazier. I insist that the records 
should show that he was simply denied the privilege of partici- 
pating in the trial now pending before us, and that he was denied 
this liberty by a vote of 13 to 6, and that there are twenty mem- 
bers sworn in. Jo. G. Carrigan." 

The Managers on the part of the House of Representatives 
and their Counsel, were granted leave to retire for consultation. 
The Managers and their Counsel having returned. 
The member from Shelby, Mr. Smith, offered Motion No. 19, 
to-wit: 

[No. 19.] "Resolved hy the Court, That we hold that any 
member of this Court, who has formed or expressed an opinion, 
upon the question of the guilt or innocence of the Respondent, is 
incompetent to sit upon the trial of the cause; and that, to effect 
the object of this motion, e^ch member will answer, upon oath, 
the question, as follows, to-wit: 'Have you formed or expressed 
an opinion on the guilt or innocence of the Respondent?' " 

Pending the discussion of which, 

The member from McMinn, Mr. McElwee, presented and offer- 
ed Motion No. 20, in lieu of Motion No. 19, to-wit: 

[No. 20.] "Resolved by the Court, That Counsel on the re- 
spective sides of this cause of Impeachment, have leave to file, in 
writing, exceptions they deem sufficient, in law, to render any 
member incompetent to sit as a member of the Court, and the 
Court will respectively and impartially try the same; also, that 
any member of the Court may assign reasons, in writing, why he 



-^ 



54 HIGH COURT OF IMPEACHMENT, 

The People of Tennessee m. Thomas N. Prazier, Judge, etc. 

shoTikl not sit in this Court, and the Court will impartially try 
the same." 

The question on the adoption of the motion in lieu, was taken 
by ayes and noes. 

Ayes 15 

Noes 4 

Members voting aye, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Keith, McKinney, Mc- 
Elwee, Nelson, Powell, Patterson, Senter, Spence, Thompson and 
Robinson. 

Members voting no, were: 

Johnson, McFarland, Smith and the President. 

And the motion was adopted in lieu. 

The question on the adoption of the motion, was then taken by 
ayes and noes. 

Ayes - 15 

Noes - --- 4 

Members voting aye, were: 

Aldridge, Bosson, Cate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Smith, Senter, Spence, Robinson and 
the President. 

Members voting no, were: 

Carrigan, Johnson, McFarland and Thompson. 

And the motion was adopted as a Rule. 

The member from Grainger, Mr. Senter, offered Motion No. 21, 
to-wit: 

[No. 21.] "Eesolved hy the Court, That the Court now adjourn 
until 9 o'clock, to-morrow morning, to give parties on either side, 
or members, time to file objections, if any they have, under the 
foregoing motion." 

The motion carried. 



HIGH COURT OF IMPEACHMENT, 55 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



And it was ordered by the President, that the Court stand ad- 
journed until 9 o'clock, A. M., to-morrow, under the Rules. 

JOSHUA B. FRIERSON, 

President of the Court. 



FRIBAY, MAY 10, 1867. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A. M. 

The Hon. J. B. Frierson, President, in the chair. 
The Roll was called. •*' 

Present 17 

Absent --- 3 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Senter, 
Spence, Robinson and the President. 

Members absent, were: 
Cypert, fSmith and Thompson, 

The Managers on the part of the House of Representatives, 
and their Counsel, and the Counsel for the Respondent, being 
present in the Court. 

The member from Lincoln, Mr. Carrigan, presented Communi- 
cation No. 2, to-wit: 

''Nashville, May 9, 1867. 
"27ie Hon. J. B. Frierson: 

"My grand-daughter died at three o'clock, P. M., this day. I 
leave immediately to see her. I ask leave of absense a few days." 

"J. P. Thompson. 



HIGH COURT OF IMPEACHMENT. 



The People cf TeDBcasee vs. Th&maa N. Frazier, Judge, etc. 

The member fram Shelby, Mr. Smithy came in, aad his same 
was called. 

Present __. 18 

Absent 2 

There being a quorum present, the proceedings of yesterday 
were read and approved. 

The Respondent, by his Counsel, Mr. East, presented Communi- 
cation No. 3, in the nature of a protest, which was read by the 
Clerk. 

Pending the discussion of which, by the opposing Counsel in 
the cause, 

Mr. Ewing, one of the Counsel for the defense, arose and stated 
to the Court, that the Respondent was not, and could not be pres- 
ent at its session to-day, because of indisposition. 

The reasons assigned by the member from Warren, Mr. Thomp- 
son, for his absence, being deemed satisfactory; and because of 
the absence of the Respondent, from indisposition. 

It was suggested to the Court, by Mr. Trimble, on behalf of 
the State, and seconded by the Counsel for the defense, that it 
would be proper for the Court to adjourn over, until Monday, the 
13th day of May, when the absent member, and the Respondeat, 
would be in attendance in the Court. 

And, thereupon, the member from Dyer, Mr. Hall, moved an 
adjournment until Monday next, at 9 o'clock, A. M. 

The motion carried. 

Whereupon, it was ordered by the President, that the Court 
stand adjourned, until Monday next, at 9 o'clock, A. M. 

JOSHUA B. FRIERSON, 

President of the Court. 



HIGH COURT OF IMPEACHMENT. 57 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



MONDAY, MAY 13, 1867. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, and was called to order at half-past 11 
o'clock, A. M. 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State and their Counsel, and the Res- 
pondent and his Counsel, being present in the Court. 

The roll was called. 

Present 18 

Absent __ _- 2 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Thompson, Robinson, and the President. 

Members absent, were: 
Cypert and Spence. 

The President announced a quorum present, and the proceed- 
ings of Friday were read and approved. 

The member from Rutherford, Mr. Spence, came in, and his 
name was called. 

Present ._. 19 

Absent- 1 

By consent. Communication No, 3 was withdrawn by the 
Counsel for the Defense. 

Respondent, by his Counsel, Mr. East, submitted Communica- 
tion No. 4, in the nature of a Protest, which was read by the 
Clerk, and asked that the same be made a part of the record in 
the case. 

The proposition to make it a part of the record in the case, 
was objected to on the part of the State; and after argument by 



58 HIGH COURT OF IMPEACHMENT. 

Tl^e People of Tennessee t's. Thomas N. Frazier, Judge, etc. 

the opposing Counsel, the question was submitted for the decision 
of the Court. 

The President announced the question before the Court, to be: 
^'Shall Communication No. 4, in the nature of a protest, filed by 
the Respondent, be placed on the Journals, as part of the record 
in the case.?" 

And on the question thus submitted, the vote was taken by- 
ayes and noes. 

Ayes -- 6 

Noes - --- -- 13 

Members voting aye, were: 

Carrigan, Johnson, McKinney, McFarland, Smith, and Thomp- 
son. 

Members voting no, were: 

Aldridge, Bosson, Cate, Hall, Keith, McElwee, Nelson, Pow- 
ell, Patterson, Senter, Spence, Robinson, and the President. 

The question was decided in the negative, and the Court re- 
fused to let the Communication be entered of record in the case. 

The Counsel for the defense, Mr. East, moved the Court for 
further time, to file exceptions under Motion No. 20. 

The motion was objected to by Mr. Maynard, one of the Coun- 
sel on the part of the State. 

After argument, the objections were withdrawn, and the ex- 
ceptions were permitted to be filed. 

Motion No. 22 was presented by Mr. East, Counsel for the de- 
fense, in the nature of exceptions, etc., to-wit: 

"The Respondent, under Resolution [Motion] No 20, of the 
Court, files the following exceptions: 

"He excepts to the sitting, in said Court, of the following gen- 
tlemen, as members of the Court, viz: W K. Hall and J. Pow- 
ell. He excepts and objects to the said W. K. Hall's sitting as 
a member of the Court: 1st. Because, as Respondent is in- 
formed and believes, said Hall was not, at the time of his elec- 



HIGH Court of impeachment. 59 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

tion as a member of the Senate, a resident and citizen of any one 
of the Counties, which he purports to represent, as a member of 
the Senate and of the Court; but he was then, and had been for 
sometime previously, a citizen and resident of the State of Ken- 
tucky. 

''2d. That said W. K. Hall is not now, and was not, at the 
time he was sworn as a member of the Court, a citizen, or resi- 
dent of any one of the Counties, he purports to represent; but is 
now, and was, when sworn, a resident and citizen of Kentucky. 
Respondent asks, respectfully, that said Hall answer, upon his 
voir dire, whether he was, at the time of his election, and for a 
year immediately previous thereto, a resident of any one of the 
Counties, which he purports to represent; whether he was then, 
and is not now, a resident of the State of Kentucky; whether 
his family is not there now, and whether it has not been there, 
for three years last past, or less; whether he has not a dwelling 
house, and house of business in Kentucky; and whether he has 
not voted, and done other acts, as a citizen thereof 

"He excepts and objects to the said J. Powell's sitting as a 
member of the Court; because, as Respondent is informed and 
believes, the said J. Powell had, previously to the sitting of this 
Court, formed and expressed an opinion, on the merits of this 
cause, hostile to Respondent; that he had said to members of 
the House of Representatives, or a member thereof, while the 
question of the Impeachment was pending: 'Put the Impeach- 
ment through your House; swing it up; send it to our House, 
and we will put him through' — or words to this effect; meaning, 
as Respondent is informed and believes, that the Senate would 
convict Respondent. Respondent respectfully asks that said 
Powell answer, upon his voir dire, whether he had not formed 
and expressed an opinion, as above stated; and whether he had 
not expressed himself, in substance, as above stated, to some 
member or members of the House of Representatives, or to some 
other person. 

"For these reasons and causes, Respondent excepts and ob- 
jects, as aforesaid. 

"THOMAS N. FRAZIER." 



/ 



60 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



Mr. Trimble, Counsel for the State, suggested, that the ex- 
ceptions and objections taken, were insufficient in law, and pro- 
posed to argue this question; and as the proposition contained 
two cases, that it would be better to take them up separately. 

It was agreed to by the Counsel for the Respondent, and the 
case of the member from Dyer, Mr. Hall, was accordingly taken 
up for consideration. 

Pending a discussion of the exceptions, filed against the hon- 
orable member from Dyer, Mr. Hall, the time for adjournment 
having arrived, 

The member from Warren, Mr, Thompson, moved an adjourn- 
ment, until to-morrow, at 9 o'clock, A. M. 

The motion carried. 

Whereupon, it was ordered by the President, that the Court 
adjourn to meet to-morrow, at 9 o'clock, A. M. 

JOSHUA B. FRIERSON, 

President of the Court. 



TUESDAY, MAY 14, 1867. 

The Senate, as a High Court of Impeachment, met pursuant to 
its adjournment, at 9 o'clock, A. M. 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State and their Counsel, and the Re- 
spondent and his Counsel, being present in the Court. 

The Roll was called : 

Present 18 

Absent 1 

Members present, were: 



HIGH COURT OP IMPEACHMENT. 61 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Aldridge, Gate, Carrigan, Hall, Johnson, Keith, McKinney, 
McElwee, McFarland, Nelson, Powell, Patterson, Smith, Senter, 
Spence, Thompson, Robinson, and the President. 

Member absent, was : 
Bosson. 

The President announced a quorum present, and the proceed- 
ings of yesterday were read and approved. 

The member from White, Mr. Bosson, came in, and his name 
was called. 

Present 19 

Absent 

The Counsel for the State, Mr. Trimble, offered and moved the 
Court for permission, to file replications on behalf of the State, 
to the exceptions to the competency of the member from Dyer, 
Mr. Hall, filed on yesterday, on behalf of Respondent. 

Leave was granted, and the replication was filed, as follows, 
to-wit : 

"Before the Senate of the State of Tennessee, sitting as a High 

Court of Impeachment, in the matters of Impeachment of Hon. 

Thomas N. Frazier: 

"^And now come the Managers on the part of the House of Rep- 
resentatives, to conduct said Impeachment, and answer the ex- 
ceptions taken by the Respondent, to the qualifications of W. K. 
Hall, a Senator, and say: 

"That the qualifications of the said Senator, Hall, has already 
been adjudicated, and determined by the Senate of the State of 
Tennessee; and having been so determined, cannot be now raised, 
of which res judicata, they are ready to prove." * 

After argument of Counsel, the question was submitted for the 
decision of the Court. 

The President announced the question for the decision of the 
Court, to be : "Is the exception to W. K. Hall, Senator from 



62 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

the 23d District, to-wit: That he is not a competent Judge of 
the Court, well taken?" 

Under the 16th Rule, it was ordered, by the President, that 
the Court be cleared of all except the sworn members and officers 
of the Court. 

After due deliberation, the Court proceeded to determine the 
point, submitted for their decision. 

And on the question, the vote was taken by ayes and noes. 

At his request, the member from Dyer, Mr. Hall was excused 
from voting on the proposition. 

Ayes. _ 

Noes - _ 18 

Members voting no, were: 

Aldridge, Bosson, Cate Carrigan, Johnson, Keith, McKinney, 
McElwee, McFarland, Nelson, Powell, Patterson, Smith, Senter, 
Spence, Thompson, Robinson, and the President. 

It was then ordered by the President, that the doors of the 
Senate be opened. 

The Managers for the State, and their Counsel, and the Re- 
spondent and his Counsel, having resumed their seats at the 
bar, the decision of the Court, on the question submitted, was an- 
nounced by the President, as follows, to-wit: 

"The question has been determined in the negative, and the 
Court has decided, that the exceptions were not well taken." 

The members from Marshall and Madison, Mr. Johnson and Mr. 
^ McFarland, presented an opinion on the question above deter- 
mined, and requested that the same be spread on the journals 
of the Court, as follows, to-wit: 

Communication No. 3. 
"Mr. President: 

"We believe, that there exists no law, by which we, as niem- 
bers of this Court of Impeachment, are authorized to vote the 
expulsion, either directly or indirectly, of any member thereof. 



HIGH COURT OF IMPEACHMENT. 63 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

We think now, as we did when the case of Senator Frazier was 
presented, that the Senate alone, as a Senate, has the legal right 
to adjudicate the qualifications of its members; that no member, 
alter such adjudication, can be, under the law, expelled for any 
cause, by a Court of Impeachment, Whatever, therefore, may 
be our opinion upon the question of the legal qualification of the 
Senator, believing as we do, that we cannot, under this law, ex- 
pel or exclude a member, we vote no. 

W. J. McFarland, 

J. D. Johnson." 

The Court then took up, and resumed the further consideration 
of the Exceptions to the competency of Joseph Powell, to sit as 
a member of the Court. 

Whereupon, leave having first been asked and obtained of the 
Court, 

The Managers for the State, by their Counsel, filed their Re- 
plication to the Exceptions filed on behalf of the defense, to the 
competency of Joseph Powell, Senator from the 3d District, to 
sit as a member of the Court, as follows, to-wit: 

''In the matters of the Im- ^ Before the Senate of the State of 
PEACHMENT OF THE HoN. > Tennessee, sitting as a High 
Thomas N. Frazier. ) Coicrt of Impeachment. 

"And now come the Managers, on the part of the House of 
Representatives, to conduct said Impeachment, and reply to the 
Exceptions taken by the impeached, to the competency of Hon. 
J. Powell, Senator, etc., and say, that the reasons alleged in said 
Exceptions, are insufiicient, in law, to disqualify the said Senator 
Powell from sitting as one of the Judges of this High Court of 
Impeachment, whereof they are ready to show." 

After argument of Counsel, the question was submitted to the 
decision of the Court. 

Under the 16th Rule, the President ordered the room to be 
cleared, for the deliberation of the Court. 

The President then announced the question for the decision of 
the Court, to be: "Are the Exceptions, to the competency of the 



64 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

member from Greene, Mr. Powell, to sit as a member of the Court, 
well taken.?" 

After due deliberation of the Court, the vote on the question, 
was taken by ayes and noes. 

At his request, the member from Greene, Mr. Powell, was ex- 
cused by the Court, from voting on the proposition. 

Ayes 

Noes 18 

Members voting no, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, McKin- 
ney, McElwee, McFarland, Nelson, Patterson, Smith, Senter, 
Spence, Thompson, Robinson, and the President. 

The President then ordered the doors of the Senate to be 
thrown open. 

The Managers for the State and their Counsel, and the Res- 
pondent and his Counsel, having resumed their seats at the Bar, 
the vote was announced, and the President proceeded to announce 
the decision of the Court to be as follows, to-wit: 

"The Court has determined the question in the negative, and 
decides, that the Exceptions to the competency of the member 
from Greene, Mr. Powell, are not well taken." 

The members from Shelby and Warren, Mr. Smith and Mr. 
Thompson, presented their written opinion upon the question 
above determined, and asked that the same might be spread upon 
the journals of the Court, as follows, to wit: 

Communication No. 4. 

"Mr. President: — I vote no in the case, because the Constitu- 
tion establishes and fixes, who shall be members of this Court; 
and this Court has no power, under the Constitution, to diminish 
or increase its members, but each and every Senator of the State, 

is entitled to sit in this Court. 

"John W. Smith, 

"Senator 25th District. 
"I concur fully in the above. 

"James P. Thompson, 

"Senator 14th District." 



HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The member from Dyer, Mr. Hall, presented Communication 
No. 5, which he asked might be spread out on the record. The 
Communication, by request, was withdrawn for the present. 

Motion No. 23, presented by the Managers for the State, to-wit: 

"Besolved by the Court, That H. M. Coburn be employed, as 
Eeporter of this Court of Impeachment, and that he be duly 
sworn in by the Clerk of the Court, as an auxiliary officer cf this 
Court, and receive such compensation for his services, as may be 
allowed by the Court." 

The vote on the adoption of the motion, was taken by ayes and 

noes. 

Ayes . 15 

Noes - -_ 4 

Members voting aye, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Keith, McKinney, 
McElwee, Nelson, Powell, Patterson, Smith, Spence, Thompson, 
and Robinson. 

Members voting no, were: 

Johnson, McFarland, Senter, and the President. 

And the motion was adopted. 

The Reporter, Mr. Coburn, came forward, and the following 
oath was duly and solemnly administered to him, by the Principal 
Clerk of the Court, to-wit: 

"You do solemnly swear, upon the Holy Evangelists of Al- 
mighty G-od, that, as Reporter of the Senate, sitting as a High 
Court of Impeachment, you will true records keep, and faithfully 
perform the duties of your office, to the best of your skill and 
ability; so help you God." 

The following was then submitted, as the form of an oath, to 
be administered to each witness, by the Principal Clerk of the 
Court, to-wit: 

"You, and each of you, do solemnly swear, [or affirm] upon 
5 



66 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

the Holy Evangelists of Almighty God, that the evidence you 
shall give to this Court, in the case now pending, in the Senate 
of Tennessee, sitting as a High Court of Impeachment, in which 
the People of Tennessee are plaintiffs, and Thomas N. Frazier is 
defendant, shall be the truth, the whole truth, and nothing but 
the truth: So help you God. 

"And the aforesaid oath shall be administered by the Principal 
Clerk of the Court." 

The vote on the question submitted, was taken by ayes and 
noes. 

Ayes 19 

Noes 

Members voting aye, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson and the President. 

And the form was adopted, and the Principal Clerk was em- 
powered and authorized to administer the same. 

The case being now open for the introduction of testimony. 

The Managers on the part of the State introduced Major Gen- 
eral George H. Thomas, a witness on behalf of the State, who, 
after being duly sworn, proceeded to testify in open Court. 

The following question was put to the witness by the Counsel 
for the State, to-wit: 

"What was the state and temper of the public mind at that 
time, (July, 1866,) as far as you could judge, at Nashville.?" 

The Respondent, by his Counsel, objected to the question, and 
to the answer which may follow, on the ground of its illegality. 

After argument of Counsel, the point was submitted for the 
decision of the Court. 

The President announced the question for the decision of the 
Court to be: 

"Shall the question be answered.?" 

And the vote on the same was taken by ayes and noes. 

Ayes 13 

Noes 6 



HIGH COURT OF IMPEACHMENT. 67 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Members voting aye, were: 

Aldridge, Bosson, Gate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Spence, Eobinson and the President. 

Members voting no, were: 

Carrig&,n, Johnson, McFarland, Smith, Senter and Thompson 

The President announced that the Court had determined the 
point in the affirmative, and decided that the question should be 
answered. 

The following question was put to the witness by the Counsel 
for the State, to-wit: 

"Did Governor Brownlow, while the Legislature was in session, 
apply to you for aid, in any way, to execute the law?" 

Respondent, by his Counsel, objected to the question, etc., on 
the grounds of its illegality. 

After argument of Counsel, the question was submitted for the 
decision of the Court. 

The President announced the question for the decision of the 
Court, to be: 

"Shall the question be answered?" 

And on the question, the vote was taken by ayes and noes. 

Ayes _ _ ._.14 

Noes _ _.., 5 

Members voting aye, were: 

Aldridge, Bosson, Gate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Senter, Spence, Robinson and the 
President. 

Members voting no, were: 

Carrigan, Johnson, McFarland, Smith and Thompson. 

The President announced that the Court had determined the 
point in the affirmative, and decided that the question should be 
answered. 

The following question was put to the witness by the Counsel 
for the State, to-wit: 

"Can you state whether there was, or was not, from your ob- 



68 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

servation, a disposition to break up the Legislature, during its 
Called Session, in July, 1866?" 

Respondent, by his Counsel, objected to the question, on the 
grounds of its illegality. 

And after argument of Counsel, the question was submitted for 
the decision of the Court. 

The President announced the question for the decision of the 
Court, to be: 

"Shall the question be answered?" 

And on the proposition, the vote was taken by ayes and noes. 

Ayes _ 13 

Noes - 6 

Members voting aye, were: 

Aldridge, Bosson, Cate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Spence, Robinson and the President. 

Members voting no, were: 

Carrigan, Johnson, McFarland, Smith, Senter and Thompson. 

The President announced that the Court had determined the 
point in the affirmative, and decided that the question should be 
answered. 

The examination of the witness. General Thomas, having been 
concluded on the part of the State and the defense, and the hour 
for adjournment having arrived. 

The member from Shelby, Mr. Smith, moved the adjournment 
of the Court until to-morrow, at 9 o'clock, A. M. 

The motion carried. 

And it was ordered by the President, that the Court stand ad- 
journed, until to-morrow, at 9 o'clock, A. M., under the Rule. 

JOSHUA B. FRIERSON, 

President of the Court, 



HIGH COURT OF IMPEACHMENT. 69 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



WEDNESDAY, MAY 15, 1867. 



The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A. M, 

The Hon. J. B. Frierson, President, in the chair. 

The Managers on the part of the House of Representatives, 
and their Counsel, and tho Respondent and his Counsel, being 
present in the Court, 

The Roll was called. 

Present 19 

Absent ._ 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson and the President. 

The President announced a quorum present, and the proceed- 
ings of yesterday were read and approved. 

The member from Lincoln, Mr. Carrigan, presented Communi- 
cation No. 6, and asked that the same be spread on the journal of 
the Court, to-wit: 

"3Ir. President: 

*'In recording my votes, yesterday, on the question made by 
the Counsel for the defendant, in the case now before us, in regard 
to the eligibility of Senator Hall, and the competency of Senator 
Powell, I desire that this explanation should be entered upon the 
journal: When Senator Frazier was challenged by the Counsel 
for the prosecution, upon the grounds of incompetency, on account 
of relationship to the defendant, I held, that the Senate of the 
State, after it had been resolved, by the Constitution, into a Court 
of Impeachment, has no power to exclude or disqualify one of its 



70 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Prazier, Judge, etc. 

members. He, who is competent as a Senator, is competent, "by 
the Constitution, to act as a member of the Court of Impeach- 
ment; and this Court has been referred to no provision in the Con- 
stitution, to no principle of law, regulating Courts of Impeach- 
ment, to no precedent of sufficient weight and authority, to change 
my original conception of the law." 

"Joe G. Careigan." 

The member from Hawkins, Mr. McKinney, presented Com- 
munication No. 7, and asked that the same be spread on the jour- 
nals of the Court, to-wit: 

"J/r. President: 

"I do not believe that a Senator should sit as a judge, in a 
case which he has already pre-judged or determined. In this case, 
Senator Powell, in conversation, since the organization of the 
Court, when there was no object to gain by misleading me, as it 
was before the objection was made to him, said, that he had ar- 
rived at no determination in regard to the case; that he intended 
to hear the evidence and the argument, then do what he should 
think to be right. I shall therefore vote, no. 

"C. J. McKinney." 

The member from Hawkins, Mr. McKinney, offered Motion No. 
24, to-wit: 

'■'■Resolved by the Court, That the Eule of this Court be changed, 
so that, instead of meeting at 6 o'clock, A. M., and adjourning at 
1 o'clock, P. M., the Court shall, after this day, meet at 8, and 
adjourn at 12; meet at 2, and sit until 5 o'clock in the evening." 

The member from Hawkins, Mr. McKinney, added the follow- 
ing as an amendment to his motion, to-wit: 

Amend, so as to meet at 9 o'clock, A. M., and adjourn at 3 
o'clock, P. M. 

The question on the adoption of the motion, was taken by ayes 
and noes. 

Ayes _ -- 5 

Noes -- 14 



HIGH COURT OF IMPEACHMENT. 71 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Members voting aye, were; 

Carrigan, McKinney, Nelson, Spence and Robinson. 

Members voting no, were: 

Aklridge, Bosson, Gate, Hall, Johnson, Keith, McElwee, Mc- 
Farland, Powell, Patterson, Smith, Senter, Thompson and the 
President. 

And the motion was lost. 

The member from Washington, Mr. Nelson, offered Motion No. 
25, to-wit: 

"Whereas, It is with great difficulty that the entire Court is 
able to hear the interrogatories and responses, with any degree 
of correctness, even amidst the most possible stillness on the part 
of the Court, and spectators; Therefore, be it 

''' Resolved hy the Court, That all persons are commanded to keep 
silence, while the High Court of Impeachment of the State of 
Tennessee, is taking the testimony in this important trial of Im- 
peachment." 

The motion was withdrawn. 

Documentary testimony communicated to the President, by 
Maj.-Gen. Geo. H, Thomas, and referred to in his examination, 
and made a part of his evidence, was presented by the President, 
and read by the Clerk in open Court. 

The Managers for the State, by their Counsel, offered and read 
as testimony in the cause, on behalf of the State, the following 
portions of the printed House Journals, for the Called Session of 
July, 1866, as follows, to wit: 

"The proceedings of July the 4th, 5th, 6th, 7th, 9th, 10th, 
11th, 12th, 14th, ieth, iVth, 18th, 19th, 20th, and that part of 
July 21st, found on page 32, embraced in the 10th and 24th 
lines inclusive; also, on page 35, embraced in the 29th and 34th 
lines inclusive; and that part of July the 23d, found on page 36, 
and down to the 7th line of page 37; and that-part of July 24th 
found on page 41, embraced in the 4th and 21st, and 33d and 
44th lines inclusive; and pages 42, 43, 44, 45, 46, 47, and that 



72 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

part of page 48, down to the 34th line; also, offered and read as 
testimony in the cause, that portion of the printed House Jour- 
nals for the session beginning on the 3d day of April, and ending 
the 12th day of June, 1865, as follows, to-wit: 

That portion of the proceedings, found on page 3, embraced in 
the 2d and 10th lines inclusive; also, that portion of the proceed- 
ings of April 5th, found on page 14, embraced in the 7th and 
29th lines inclusive; also, that portion of the proceedings, found 
on page 18, embraced in the 36th and 43d lines inclusive. 

Also, offered and read as testimony, the 14th Rule, adopted for 
the government of the House of Representatives." 

The Managers for the State, introduced the Hon. H. P. Mur- 
phy, a witness on behalf of the State, who, after being duly 
sworn, proceeded to testify in open Court. 

The examination, in chief, of the Hon. H. P. Murphy, having 
been concluded on the part of the State, and the cross-examina- 
tion of said witness having been begun and concluded, on the 
part of the defense, 

The Managers for the State, introduced the Hon. James Mul- 
lins, a witness on behalf of the State, who, after being duly 
sworn, proceeded to testify in open Court. 

The following question was put to the witness, by the Counsel 
for the State, to-wit: 

"Did you see what they did at the Capitol.?" 

The Respondent, by his Counsel, objected to the question, &c., 
on the grounds of its illegality. 

Pending the argument of Counsel on the objections raised, 

The time for adjournment having arrived, 

The member from Shelby, Mr. Smith, moved an adjournment 
until to-morrow at 9 o'clock, A. M. 

The motion carried. 

And it was ordered by the President, that the Court stand ad- 
journed until to-morrow at 9 o'clock, A. M., under the Rule. 

JOSHUA B. FRIERSON, 

President of the Court. 



HIGH COURT OF IMPEACHMENT. 73 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



MONDAY, MAY 16, 1867. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A. M. 

The Hon, J. B. Frierson, President, in the chair. 

The Managers for the State and their Counsel, and the Re- 
spondent and his Counsel, being present in the Court, 

The roll was called. 

Present -- 19 

Absent - - 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson, and the President. 

The President announced a quorum present, and the proceed- 
ings of yesterday were read and approved. 

Mr. Maynard, Counsel for the State, announced to the Court, 
that the Hon. James Mullins, witness for the State, who was upon 
the stand when the Court adjourned last evening, was compelled 
to leave for home, and would not be able to return for a few days. 

And stated, that as there were a number of witnesses in attend- 
ance, he hoped the Court would pass the matter over where it 
was left by the adjournment, until the return of the witness, 
when his examination could be resumed, where it had been 
left off. 

To this arrangement, Mr, Ewing, Counsel for Respondent, 
agreed; provided, the witness returned before the close of the 
testimony on behalf of the State, in which event, he here inter- 
posed objections to any further examination of the witness, as 
well as to his testimony already taken. 

There being no objection to the arrangement, the matter was 
passed over by the Court, for the present. 



74 HIGH COUET OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The Managers for the State, introduced the Hon. W. Y. Elliott, 
a witness on behalf of the State, who, after having beea duly 
sworn, proceeded to testify in open Court, 

The Respondent, by his Counsel, asked the witness the follow- 
ing question, after the State had re-examined as to new matter, 
brought out in the cross-examination, to- wit: 

'"I wish to know where you derived that impression, that you 
spoke of, in regard to Judge Frazier?" 

The Managers for the State, by their Counsel, objected to the 
question, on the grounds that the witness had been examined in 
chief, cross-examined by Respondent, and re-examined by the 
State as to new matter called out by the cross-examination, and 
therefore, cannot be re-cross-examined by Respondent. 

After argument, the objection was withdrawn. 

The examination of the Hon. W. Y. Elliott, having been con- 
cluded on the part of the State, and also, the cross-examination 
on the part of the Respondent, 

The Managers for the State introduced Mr. H. M. Bramble, a 
■witness on behalf of the State, who, after having been duly 
sworn, proceeded to testify in open Court. 

The examination of the witness, Mr, H, M. Bramble, having 
been concluded on the part of the State, and also the cross-exami- 
nation on the part of the Respondent, 

The Managers for the State introduced Michael J. Plouston, a 
witness on behalf of the State, who, after having been duly 
sworn, proceeded to testify in open Court, 

Pending the examination of the witness, the member from 
Warren, Mr. Thompson, moved an adjournment to 9 o'clock, 
A. M. 

And on the question of adjournment, the ayes and noes were 
called. 

Ayes .,- 11 

Noes 8 

Members voting aye, were: 

Hall, Johnson, Keith, McElwee, McFarland, Powell, Smith, 
Senter, Spence, Thompson, and the President. 



HIGH COURT OF IMPEACHMENT. 75 



The People of Tennessee vs, Thomas N. Frazier, Judge, etc. 



Members voting no, were: 

Aldridge, Bosson, Gate, Garrigan, McKinney, Nelson, Patter- 
son, and Robinson. 
The motion carried; 

And it was ordered by the President, that the Court stand ad- 
journed until 9 o'clock, A. M., to-morrow, under the Rule. 

JOSHUA B. FRIERSON, 

President of the Court. 



FRIDAY, MAY 17, 1867. 

The Senate, as a High Court of Impeachment^ met pur- 
suant to its adjournment, at 9 o'clock, A. M., 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State and their Counsel, and the Re- 
spondent and his Counsel, being present in the Court, 

The Roll was called. 

Present __. __. 19 

Absent 

Members present, were: 

Aldridge, Bosson, Gate, Garrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson, and the President, 

The President announced a quorum present, and proceedings 
of yesterday were read and approved. 

Documentary testimony, communicated to the President, by 
Maj.-Gen. Geo. H. Thomas, and referred to in his examination, 
and made a part of his evidence, was presented by the President, 
and read by the Clerk, in open Court, 



76 HIGH COURT OF IMPEACHMENT, 



The People of Teanessee vs. Thomas N. Frazier, Judge, etc. 



"The Court then resumed the further examination of Michael 
J. Houston, a witness on behalf of the State. 

The examination in chief of Michael J, Houston, having been 
concluded, and the cross-examination of said witness having 
been begun and concluded, on the part of the defense, 

The Managers for the State introduced Mr. J. N. Dunnaway, a 
witness on behalf of the State, who, after having been duly 
sworn, proceeded to testify in open Court. 

The Managers for the State, by their Counsel, put to the wit- 
ness the following question, to-wit: 

"Did your brother tell you, that Mr. Cooper represented these 
as the sentiments of the President of the United States?" 

The Respondent, by his counsel, objected to the question, etc. 

And the question was submitted to the Court for its decision. 

The President announced the question to be: 

"Shall the question be answered?" 

And on the question, the vote was taken by ayes and noes. 

Ayes _-_ -_ _ - --.12 

Noes - 7 

Members voting aye, were: ' 

Aldridge, Bosson, Cate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Senter and Spence. 

Members voting no, were: 

Carrigan, Johnson, McFarland, Smith, Thompson, Robinson 
and the President. 

And the question was allowed to be answered. 

The examination in chief of the witness having been concluded, 
and also, the cross-examination on the part of the defense. 

The Managers for the State introduced Abram Smith, a witness 
on behalf of the State, who, after having been duly sworn, pro- 
ceeded to testify in open Court. 

The examination in chief of the witness having been concluded, 
and the Respondent having declined to cross-examine. 

The Managers for the State introduced Wade Hickman, a wit- 
ness on behalf of the State, who, after having been duly sworn, 
proceeded to testify in oj)eu Court. 



HIGH COURT OF IMPEACHMENT. 77 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The examination in chief of the witness having been concluded, 
and the Respondent having declined a cross-examination, 

The Managers for the State introduced Buck Lewis, a witness 
on behalf of the State, who, after having been duly sworn, pro- 
ceeded to testify in open Court. 

The examination in chief of the witness having been concluded, 
and also, the cross-examination on the part of the defense, 

The Managers for the State introduced Edward H. Gowen, a 
witness on behalf of the State, who, after having been duly 
sworn, proceeded to testify in open Court. 

The examination in chief of the witness having been concluded, 
and also, the cross-examination on the part of the defense, 

The Managers for the State introduced William Heydt, a wit- 
ness on behalf of the State, who, after having been duly sworn, 
proceeded to testify in open Court. 

The examination in chief of the witness having been concluded, 
and also, the cross-examination on the part of the defense, 

The Managers for the State introduced Mr, M, B. Howell, a 
witness on behalf of the State, who, after having been duly sworn, 
proceeded to testify in open Court. 

The Respondent, by his Counsel, objected to the introduction 
of the Bill filed by the Mayor and Common Council of Nashville 
against the Metropolitan Police Commissioners, or any portion of 
the same, to be read in evidence, for any purpose, in the case. 

After argument of Counsel, the question was submitted to the 
decision of the Court. 

The President stated the question to be: 

"Shall the Bill be received as evidence in the case?" 

And on the question, the vote was taken by ayes and noes. 

Ayes — _ 11 

Noes _ 8 

Members voting aye, were: 

Aldridge, Bosson, Gate, Hall, Keith, McKinney, Nelson, Pow- 
ell, Patterson, Senter and Robinson. 

Members voting no, were: 

Carrigan, Johnson, McElwee, McFarland, Smith, Spence, 
Thompson and the President. 



78 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The President announced that the question was determined in 
the affirmative, and the decision of the Court was, that the Bill 
should be received as evidence in the case. 

Whereupon, Respondent, by his Counsel, excepted to the 
ruling of the Court, as to the result, in law, of the vote as above 
announced; and stated that the exception made was based on 
the legal grounds, that it required a two-thirds vote to determine 
the question above submitted in the affirmative; whereas, there 
was, in fact, less than a two-third-vote, and, therefore, the ruling 
of the Court was error. 

Pending the argument of which. 

The member from Marshall, Mr. Johnson, moved an adjourn- 
ment until 9 o'clock, A. M., to-morrow. 

And on the question, the member from Rutherford, Mr. Spence, 
called the ayes and noes. 

Ayes -- 8 

Noes - 11 

Members voting aye, were: 

Aldridge, Carrigan, Johnson, McFarland, Powell, Smith, Sen- 
ter and Thompson. 

Members voting no, were: 

Bosson, Gate, Hall, Keith, McKinney, McElwee, Nelson, Pat- 
terson, Spence, Robinson and the President. 
And the motion to adjourn was lost. 

The Court then resumed the further consideration of the point 
raised by the Respondent. 

The President announced the question to be: 

"Shall the ruling of the President be sustained?" 

And on the question, the vote was taken by ayes and noes. 

Ayes - -_ 15 

Noes 4 

Members voting aye, were: 

Aldridge, Bosson, Gate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Smith, Senter, Spence, Robinson and 
the President. 



HIGH COURT OF IMPEACHMENT. 79 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



Members voting no, were: 

Carrigan, Johnson, McFarland and Thompson. 

And the ruling of the Chair was sustained. 

The Court then resumed the further examination of the wit- 
ness, Mr, Howell. 

Pending which, 

The member from Warren, Mr. Thompson, moved an adjourn- 
ment until 9 o'clock, A. M., to-morrow. 

The motion carried. 

And it was ordered by the President, that the Court stand ad- 
journed until to-morrow, at 9 o'clock, A. M., under the Rule. 

JOSHUA B. FRIERSON, 

President of the Court. 



SATURDAY, MAY 18, 1867. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A. M. 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State, and the Respondent and their 
Counsel, being present in the Court, 

The roll was called. 

Present „ __ 19 

Absent _ _ _. 

Members present, were! 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson and the President. 

The President announced a quorum present and the proceed- 
ings of yesterday were read and approved. 



80 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The member from Washington, Mr. Nelson, offered Motion 
No, 25, to- wit: 

[No. 25.] "Besolved by the Court, That the present rules of 
this Court be so amended, that all questions demanding a call of 
the ayes and noes shall be decided by a majority vote, except the 
vote of final decision of the guilt or innocence of the Respondent." 

The question on the adoption of the motion, was taken by 
ayes and noes. 

Ayes - 14 

Noes - 5 . 

Members voting aye, were: 

Aldridge, Bosson, Gate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Senter, Spence, Robinson and the 
President. 

Members voting no, were: 

Carrigan, Johnson, McFarland, Smith and Thompson. 

And the motion was adopted as a Rule, 

The Court then resumed the further examination of Mr. How- 
ell, a witness on behalf of the State. 

The examination in chief of the witness having been concluded, 
and also, the cross-examination on behalf of the defense, 

The Managers for the State introduced Hon. Horace H. Harri- 
son Chancellor, etc., a witness on behalf of the State, who, after 
havino' been duly sworn, proceeded to testify in open Court. 

The examination in chief of the witness having been concluded, 
and also, the cross-examination on the part of the defense. 

The Managers for the State introduced Mr. James C. Martin, 
a witness on behalf of the State, who, after having been duly 
sworn, proceeded to testify in open Court. 

The examination in chief of the witness having been concluded, 
and also, the cross-examination on the part of the defense. 

The Managers for the State introduced Hon. A. J. Fletcher, a 
witness on behalf of the State, who, after having been duly 
sworn, proceeded to testify in open Court. 

The examination in chief of the witness having been concluded, 
and the Respondent having declined a cross-examination, 



HIGH COURT OF IMPEACHMENT. 81 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The Managers for the State introduced Mr. Charles E. Diggons, 
a witness on behalf of the State, who, after having been duly 
sworn, proceeded to testify in open Court. 

The esaminatioQ in chief of the witness, having been concluded, 
and also, the cross-examination on the part of the defense. 

The member from Shelby, Mr. Smith, moved an adjournment 
until 9 o'clock, A. M., Monday next. 

The member fr»ni Grainger, Mr. Senter, movedto adjourn to 
half-past eleven o'clock, A. M., Monday next. 

In cases of adjournment, the longest time takes the precedence; 
and. 

The question was taken on the motion to adjourn to half after 
eleven o'clock, A. M., Monday next; 

And on the question, the vote was taken by ayes and noes. 

Ayes 11 

Noes _- 8 

Members voting aye, were: 

Bosson, Cate, Hall, Keith, McKinney, McElwee, Smith, Senter, 
Spence, Thompson and the President. 

Members voting no, were: 

Aldridge, Carrigan, Johnson, McFarland, Nelson, Powell, Pat- 
terson and Robinson. 

And the motion to adjourn carried. 

And it was ordered by the President, that the Court stand ad- 
journed, to meet at half after eleven o'clock, A, M., Monday next. 

JOSHUA B. FRIERSON, 

President of the Court. 



X 



82 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



MONDAY, MAY 20, 1867. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at half after eleven o'clock, A. M. 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State, and their Counsel, and the Re- 
spondent and his Counsel, being present in the Court, 

The roll was called. 

Present- 18 

Absent 1 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Thompson, Robinson and the President. 

Member absent, was: 
Spence. 

' The President announced a quorum present, and the proceed- 
ings of Saturday were read and approved. 

The President ordered the Sergeant-at-Arms, to proceed and 
bring in absent members. 

The member from Rutherford, Mr. Spence, came in, and his 
name was called. 

Present _ 19 

Absent 

The Court then resumed the further examination of the Hon. 
James Mullins, a witness on behalf of the State, which was begun 
and not concluded, on Thursday last. 

The examination in chief of the witness, having been concluded, 
and, also, the cross-examination on the part of the defense. 

The member from Warren, Mr. Thompson, offered Motion No. 
26, to-wit: 



HIGH COURT OF IMPEACIIMEN-T. 83 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

^'Besolved by tJi€ Court, That neither the Managers nor Defend- 
ant, shall be permitted to introduce, or examine any witness, un- 
less it be pertinent to the issue raised in the Impeachment: 1st, 
As to the discharge of Williams and Martin; Sd, Whether in dis- 
charging said Williams and Martin, it was done corruptly by the 
accused; 3d, As to good character." 

The motion was laid over under the rules. 

The Managers for the State, introduced Mr. Ruel Hough, a 
witness on behalf of the State, who, having been duly sworn, 
proceeded to testify in open Court. 

The Managers for the State, offered as evidence, a letter written 
by Hon. Jno. W. Leftwich, Member of Congress, to the witness. 

Respondent, by his Counsel, objected to the introduction of said 
letter, on the grounds of its being irrevalent and impertinent to 
the question before the Court. 

After argument of Counsel, the question was submitted to the 
decision of the Court. 

The President announced the question to be: 

"Shall the letter be received as evidence.'^" 

And on the question, the vote was taken by ayes and noes. 

Ayes.-_- „ 13 

Noes.-- _-. _ 6 

Members voting aye, were: 

Aldridge, Bosson, Cate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Senter, Spence and Robinson. 

Members voting no, were: 

Carrigan, Johnson, McFarland, Smith, Thompson, and the 
President. 

And the question was determined in the affirmative; and the 
letter was allowed to be received as evidence in the case. 

The examination in chief of the witness, having been conclud- 
ed, and also, the cross-examination on the part of the defense. 

The Managers for the State, introduced the Hon. F. S. Rich- 
ards, a witness on behalf of the State, who, after having been 
duly sworn, proceeded to testify in open Court. 



84 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The examination in chief of the witness, having been conclud- 
ed, and also, the cross-examination on the part of the defense, 

The member from Warren, Mr. Thompson, moved an adjourn- 
ment to 9 o'clock, A. M., to-morrow. 

The motion carried. 

And it was ordered by the President, that the Senate stand 
, adjourned, to meet at 9 o'clock, A. M., to-morrow, under the Eule. 

JOSHUA B. FRIERSON, 

President of the Court. 



TUESDAY, MAY 21, 1867. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A. M. 

The Hon. J. B. Frierson, President, in tho chair. 

The Managers for the State and their Counsel, and the Res- 
pondent and his Counsel, being present in the Court, 

The Roll was called. 

Present 19 

Absent- - 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson, and the President. 

The President announced a quorum present, and the proceed- 
ings of yesterday were read and approved. 

The member from Warren, Mr. Thompson, asked and obtained 
leave to withdraw motion No. 26. 

The Managers for the State, introduced Mr. Ed. Mulloy, a wit- 
ness for the State, who, after having been duly sworn, proceeded 
to testify in open Court. 



HIGH COURT OF IMPEACHMENT. 8S 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The examination in chief of the witness, having been conclud- 
ed, and also, the cross-examination on the part of the defense. 

The Managers for the State, introduced Mr. Wm. Shane, a 
witness on behalf of the State, who, after having been duly sworn, 
proceeded to testify in open Court. 

The examination in chief of the witness, having been conclud- 
ed, and also, the cross-examination on the part of the defense, 

The Managers for the State announced, that they had now 
concluded their testimony, for the present. 

The Respondent introduced Mr. Jno. C. Gaut, a witness on his 
behalf, who, after having been duly sworn, proceeded to testify in 
open Court. 

The examination in chief of the witness, having been con- 
cluded, 

The Managers for the State, by their Counsel, asked the wit- 
ness the following question, to-wit: 

"Suppose, for instance, as was stated in the argument before 
Judge Frazier, Judge Frazier was sitting as a Judge of the Crim- 
inal Court, and his Clerk, or a member of the Bar, should attempt 
to break up his Court, and the Judge should order the party in 
custody for contempt, and some friend should slip around to the 
Judge of the Circuit Court, and ask for a writ of habeas corpus, 
would that not be an exception.?" 

Respondent, by his Counsel, objected to the question as illegal. 
After argument of Counsel, the question was submitted to the 
decision of the Court. 

The President announced the question to be: 

'•'Shall the question be answered?" 

And on the question, the vote was taken by ayes and noes. 

Aves - — 9 

Noes 10 

Members voting aye, were: 

Aldridge, Bosson, Cate, Hall, Keith, McElwee, Nelson, Powell, 
and Spence. 

Meiifbers voting; no, were: 



86 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Carrigan, Johnson, McKinnev, McFarland, Patterson, Smithy 
Senter, Thompson, Robinson, and the President. 

The President announced, that the question had been deter- 
mined in the negative^ and the Court decided the question should 
not be answered. 

The Managers for the State, by their counsel, then asked the 
witness the following question, to-wit: 

"Well, would not wrongful and willful granting of the habeas 
corpus be a misdemeanor ?" 

Respondent, by his counsel, objected to the question, on the 
grounds of its illegality. 

After argument of counsel, the question was submitted to the 
decision of the Court. 

The President announced the question to be: "Shall the ques- 
tion be answered ?" 

And on the question the vote was taken by ayes and noes. 

Ayes 11 

Noes 8 

Members voting aye, were: 

Aldridge, Bosson, Gate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, and Spence. 

Members voting no, were: 

Carrigan, Johnson, McFarland, Smith, Senter, Thompson, 
Robinson, and the President. 

The President announced that the question was determined in 
the affirmative, and the Court decides that the question shall be 
answered. 

The cross-examination having been concluded on the part of 
the State, 

Respondent introduced Hon. John S. Brien, a witness on his 
behalf, who, after having been duly sworn, proceeded to testify in 
open Court. 

The examination in chief of the witness having been con- 
cluded, and, also, the cross-examination on the part of the State, 



HIGH COURT OF IMPEACHMENT. 87 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Kespoadent introduced Mr. John W, Lee, a witness on his be- 
half, who, after having been duly sworn, proceeded to testify in 
oj)en Court. 

The examination in chief of the witness having been con- 
cluded, and also the cross-examination on the part of the State, 

The member from Warren, Mr. Thompson, moved an adjourn- 
ment until 9 o'clock, A. M., to-morrow. 

The motion carried. 

And it was ordered by the Pyesident, that the Court stand ad- 
journed, to meet at 9 o'clock, A. M., to-morrow, under the Rule. 

JOSHUA B. FRIERSON, 

President of the Court 



WEDNESDAY, MAY, 22, 1867. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A. M., 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State and their Counsel, and the Re- 
spondent and his Counsel, being present in the Court, 

The roll was called. 

Present 19 

Absent 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElvvee, McFarland, Nelson, Powell, Patterson, 
Smith, Senter, Spence, Thompson, Robinson, and the President. 

The President anncmnced a quorum present, and the proceed- 
ings of yesterday were read and approved. 



88 HIGH COURT OF IMPEICHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



Respondent introduced George J, Stubblefield, Attorney-Gen- 
eral for the District, a witness on his behalf, who, after 

having been duly sworn, proceeded to testify in open Court, 

The examination in chief of the witness having been con- 
cluded, and also the cross-exanaination on the part of the State, 

Respondent introduced the deposition of W. T. Hickerson, and 
read the sanie as testimony in the case. 

Respondent introduced Mr. E. A. Otis, a witness on his be- 
half, who, after having been duly sworn, proceeded to testify in 
open Court. 

The examination in chief of the witness having been con- 
cluded, and also the cross-examination on the part of the State, 

Respondent introduced Mr. Neil S. Brown, a witness on his 
behalf, who, after having been duly sworn, proceeded to testify in 
open Court. 

The examination in chief of the witness having been con- 
cluded, and also the cross-examination on the part of the State, 

Respondent introduced Mr. A. A. Heidt, Attorney-General of 
the 4th District, a vritness on his behalf, who, after having been 
duly sworn, proceeded to testify in open Court. 

The examination in chief of the witness having been con- 
cluded, and also the cross-examination on the part of the State, 

Respondent introduced Mr. S. B. Spurlock, a witness on his 
behalf, who, after having been duly sworn, proceeded to testify in 
open Court. 

The examination in chief of the witness, having been con- 
cluded, and also, the cross-examination on the part of the State, 

Respondent introduced Hon. B. Frazier, a witness on his be- 
half, who, after having been duly sworn, proceed to testify in 
open Court. 

Pending which, 

The member from Warren, Mr. Thompson, moved an adjourn- 
ment to 9 o'clock, A. M., to-morrow. 

And on the question, the vote was taken by ayes and noes. 

Ayes.-- 7 

Noes -.- -...12 



HIGH COURT OF IMPEACHMENT. 89 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Members voting aye, were: 

Aldridge, Carrigaa, Johnson, Keith, McElvvee, Smith, and 
Thompson. 

Members voting no, were: 

Bosson, Gate, Hall, McKinney, McFarland, Nelson, Powell, 
Patterson, Senter, Spence, Bobinson, and the President. 
And the motion to adjourn was lost. 

The Court then resumed the further examination of the Hon. 
B. Frazier. 

The examination in chief of the witness, having been con- 
cluded, and also, the cross-examination on the part of the Btate, 

The member from Hamilton, Mr. Gate, moved ,an adjournment 
to 9 o'clock, A. M., to-morrow. 

The motion carried. 

And it was ordered by the President, that the Court stand ad- 
journed, to meet at 9 o'clock, A. M., to-morrow, under the Rule. 

JOSHUA B. FRIERSON, 

President of the Court. 



THURSDAY, MAY 23, 1867. 

The Senate, as a High Court of Impeachment, met pursuant to 
adjournment, at 9 o'clock, A. M,, 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State, and their Counsel, and the Re- 
spondent and his Counsel, being present in the Court, 

The Roll was called. 

Present - 19 

Absent- 



90 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



Members present, were: 

Aldiidge, Bosson, Gate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson, and the President. 

The President announced a quorum present, and the proceed- 
ings of yesterday were read and approved. 

The member from Hawkins, Mr. McKinney, offered Motion No. 
27, to-wit. 

"Besolved by the Court, That the Rules of the Court be 
changed, after the evidence is through, so that the Court meet at 
8 o'clock, A. M., hold its session until 12; meet at 2, and sit 
until 5 o'clock, in the evening." 

The Member from Hawkins, Mr. McKinney, moved a suspen- 
sion of the Rules, to take up the motion. 

And on the question the vote was taken by ayes and noes. 

Ayes - 4 

Noes 15 

Members voting aye, were: 

Gate, Carrigan, McKinney, and the President. 

Members voting no, were: 

Aldridge, Bosson, Hall, Johnson, Keith, McElwee, McFarland, 
Nelson, Powell, Patterson, Smith, Senter, Spence, Thompson, 
and Robinson. 

And the motion was lost. 

Respondent introduced Hon. M. M. Brien, Judge of the Circuit 
Court of Davidson County, a witness on his behalf, who, after 
having been duly sworn, proceeded to testify in open Court. 

The examination in chief of the witness, having been con- 
cluded, 

The Managers for the State, by their Counsel, asked the wit- 
ness the following question, to-wit: 

" Was it not a plain, palpable case of the rights and privileges 
of the House of Representatives, as you understand the law.^" 



HIGH COURT OF IMPEACHMENT. 91 



The People of Tenuessee vs. Thomas N. Frazier, Judge, etc. 



Kespondent, by his Counsel, objected to the question, on the 
grounds of its illegality. 

After argument of Counsel, the question was submitted to the 
decision of the Court. 

The President announced the question to be: 

" Shall the question be answered.?" 

And on the question, the vote was taken by ayes and noes. 

Ayes--- -10 

Noes 7 

Members voting aye, were: 

Aldridge, Bosson, Gate, Hall, Keith, McElwee, Nelson, Powell, 
Patterson and Robinson. 

Members voting no, were: 

Carrigan, Johnson, McKinney, McFarland, Smith, Senter and 
the President. 

Messrs. Spence and Thompson not being in the Court and 
voting. 

And the Court decided that the question should be answered. 

Respondent introduced Mr. Francis B. Fogg, a witness on his be- 
half, who, after being duly sworn, proceeded to testify in open Court. 

The examination in chief of the witness having been concluded, 
and a cross-examination being declined by the State, 

Respondent introduced Mr. Silas F. Allen, a witness on his be- 
half, who, after having been duly sworn, proceeded to testify in 
open Court. 

The examination in chief of the witness, having been concluded, 
and also, the cross-examination on the part of the State, 

Respondent introduced Mr. T, J. Wilson, a witness on his be- 
half, who, after having been duly sworn, proceeded to testify in 
open Court. 

The examination in chief of the witness, having been concluded, 
and also, the cro^s-examination on the part of the State, 

Respondent introduced Mr. P. M. Hoodenpyll, a witness on 
his behalf, who, after having been duly sworn, proceeded to testify 
in open Court. 



92 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The examination in chief of the witness having been concluded, 
and also, the cross-examination on the part of the State, 

John C. Gaut, a witness on behalf of Respondent, was called 
back to the stand by Respondent, and re-examined; 

And after re-examination by the State, 

Michael J. Houston, a witness on behalf of the State, was 
called back to the stand, by the Managers for tlie State, and re- 
examined. 

The re-examination of this witness having been concluded; 

And it being announced to the Court, that the testimony on 
behalf of both the State and Respondent, whs concluded. 

Respondent, by his Counsel, Mr. Ewing, offered Motion No. 28, 
to-wit: 

"The Counsel for Respondent here moves the Court, that the 
Court exclude from its consideration, all the testimony offered in 
this cause, tending to prove a conspiracy to defeat the meeting of 
the Legislature, upon the grounds that the State has wholly failed 
to connect the Respondent with any such conspiracy." 

Whereupon, it was agreed by Counsel on both sides, that said 
motion might be argued, in the final argument of the cause. 

The member from Grainger, Mr. Senter, moved to abolish Rule 
No. 12; 

And on the question, the vote was taken by ayes and noes. 

Ayes - _- -- 9 

Noes 10 

Members voting aye, were: 

Bosson, Gate, Carrigan, McKinney, Nelson, Patterson, Senter, 
Spence and the President. 

Members voting no, were: 

Aldridge, Hall, Johnson, Keith, McElwee, McFarland, Powell, 
Smith, Thompson and Robinson. 
And the motion was lost. 

The testimony having been concluded, the President announced 



HIGH COURT OF IMPEACHMENT. 93 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

that the Court was ready to proceed with the argument of the 
cause; 

Whereupon, the cause was opened in argument, on behalf of 
the State, by J. J. Noah, Esq. 

After the conclusion of which. 

The member from Lincoln, Mr. Carrigan, offered Motion No. 29, 
to- wit: 

"JResolved by the Court, That the Counsel on either side of the 
case before the Court of Impeachment, are respectfully forbidden, 
and hereby requested, not to refer, or discuss, in any way, the 
present or past political sentiments of the country. 

^^ Resolved further, That when any of the Counsel for the State, 
or Respondent, refer to the political sentiments, he shall be called 
to order." 

The President announced the question before the Court, to be: 
"Shall the Rules be suspended, to take up the motion? 
And on the question the vote was taken by ayes and noes. 

Ayes — — » _- -.16 

Noes , 1 

Members voting aye, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, McKinney, 
McElwee, McFarland, Nelson, Powell, Patterson, Senter, Thomp- 
son, Robinson and the President. 

Member voting no, was: 
Keith. 

Messrs. Smith and Spence being absent and not voting. 
And the motion carried. 

The question on the adoption of the motion, was taken by ayes 
and noes. 

Ayes - 4 

Noes 13 



94 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Members voting aye, were: 

Carrigan, Johnson, McFarland and Thompson. 

Members voting no, were: 

Aldridge, Bosson, Gate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Senter, Robinson and the President. 
Messrs. Smith and Spence being absent and not voting. 
And the motion was lost. 

The member from Hawkins, Mr. McKinney, moved that the 
Court take a recess, until thirty minutes after 2 o'clock, P. M. 
And on the motion, the vote was taken by ayes and noes. 

Ayes 5 

Noes - 14 

Members voting aye, were: 

Carrigan, McKinney, Nelson, Senter and Spence. 

Members voting no, were: 

Aldridge, Bosson, Gate, Hall, Johnson, Keith, McElwee, Mc- 
Farland, Powell, Patterson, Smith, Thompson, Robinson and the 
President. 

And the motion was lost. 

The member from Washington, Mr. Nelson, moved an adjourn- 
ment to 9 o'clock, A. M., to-morrow. 

And on the question, the member from Grainger, Mr. Senter, 
called the ayes and noes. 

Ayes __ _ 14 

Noes 5 

Members voting aye, were: 

Aldridge, Bosson, Gate, Hall, Johnson, Keith, McElwee, Nel- 
son, Powell, Patterson, Smith, Thompson, Robinson and the 
President. 

Members voting no, were: 

Carrigan, McKinney, McFarland, Senter and Spence. 

The motion carried. 



HIGH COURT OF IMPEACHMENT. 95 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



And it was ordered by the President, that the Court stand 
adjourned, to meet at 9 o'clock, A. M., to-morrow, under the Rule. 

JOSHUA B. FRIERSON, 

President of the Court. 



FRIDAY, MAY 24, 1867. 

The Senate, as a High Court of Impeachment, met pursuant to 
its adjournment, at 9 o'clock, A. M. 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State and their Counsel, and the Re- 
spondent and his Counsel, being present in the Court, 

The Roll was called. 

► Present - - 19 

Absent - -- -- 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson and the President. 

The President announced a quorum present, and the proceedings 
of yesterday were read and approved. 

The President then announced that the Court was ready to 
proceed with the argument of the cause. 

The cause, on behalf of Respondent, was opened, in argument, 
by Ed. H. East, Esq. 

After the conclusion of which. 

He was followed by the Hon. N. A. Patterson, in argument, on 
behalf of the State. 

The member from Warren, Mr. Thompson, moved an adjourn- 
ment to 9 o'clock, A. M., to-morrow. 



96 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Prazier, Judge, etc. 

The member from Dyer, Mr. Hall, moved to amend the motion, 
to adjourn to 9 o'clock, A. M., Monday next. 

The amendment was accepted. 

On the question to adjourn, the member from Greene, Mr. 
Powell, called the ayes and noes. 

Ayes - 8 

Noes - 10 

Members voting aye, were: 

Bosson, Carrigan, Hall, Keith, McElwee, Patterson, Thomp- 
son and Robinson. 

Members voting no, were: 

Aldridge, Gate, Johnson, McKinney, McFarland, Nelson, Pow- 
ell, Senter, Spence and the President. 
And the motion was lost. 

The member from Lincoln, Mr. Carrigan, moved an adjourn- 
ment to 9 o'clock, A. M., to-morrow. 

The motion carried. 

And it was ordered by the President, that the Court stand 
adjourned to meet at 9 o'clock, A. M., to-morrow. 

JOSHUA B. FRIERSON, 

President of the Court. 



HIGH COURT OF IMPEACHMENT. 97 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



SATURDAY, MAY 25, 1867. 

The Senate, as a High Court of Impeachmentj met pursuant 
to its adjournment, at 9 o'clock, A. M. 

The Hon. J. B. Frierson, President, in the Chair, 

The Managers for the State, and their Counsel, and the Re- 
spondent and his Counsel, being present in the Court, 

The roll was called. 

Present _ ... 19 

Absent 

embers present, were! 
Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson and the President. 

The President announced a quorum present and the proceed- 
ings of yesterday were read and approved. 

The member from Warren, Mr. Thompson, moved an adjourn- 
ment to 9 o'clock, A. M., Monday next. 

And on the motion, the member from Dyer, called the ayes 
and noes. 

Ayes 12 

Noes 7 

Members voting aye, were: 

Aldridge, Bosson, Cate, Hall, McElwee, Powell, Patterson, 
Smith, Spence, Thompson, Robinson, and the President, 

Members voting no, were: 

Carrigan, Johnson, Keith, McKinney, McFarland, Nelson, and 
Senter. 

The motion carried. 

And it was ordered by the President, that the Court stand ad- 
journed, to meet at 9 o'clock, A. M., Monday next, under the 
rule. 

JOSHUA B. FRIERSON, 

President of the Court. 
7 *^ 



1)8 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



MONDAY, MAY 27, 1867. 



The Senate, as a Higli Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A. M. 

The Hon. J. B, Frierson, President, in the chair. 

The Managers for the State and their Counsel, and the Ees- 
pondeut and his Counsel, being present in the Court, 

The Roll was called. 

Present - 19 

Absent ._ 

Members present, were: 

Aldridge, Bosson, Gate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson, and the President. 

The President announced a quorum present, and the proceed- 
ings of yesterday were read and approved. 

Jno. C. Gaut, Esq., Counsel for Respondent, opened and closed 
his argument in the cause. 

The member from Washington, Mr, Nelson, moved an adjourn- 
ment to 9 o'clock, A. M., to-morrow. 

And on the motion, the member from Lincoln, Mr. Carrigan, 
called the ayes and noes. 

Ayes -- 16 

Noes ^ 

Members voting aye, were: 

Aldridge, Bosson, Gate, Hall, Johnson, Keith, McKinney, Mc- 
Elwee, Nelson, Powell, Patterson, Smith, Spence, Thompson, 
Robinson, and the President, 

Members voting no, were: 
Carrigan, McFarland and Senter. 
The motion carried. 



HIGH COURT OF IMPEACHMENT. 99 

The People of Teunessce vs. Thomas N. Frazier, Judge, etc. 

And it was ord'e'-ed by the President, that the Court stand ad- 
journed, to meet at 9 o'clock, A. M., to-morrow, under the Rule. 

JOSHUA B. FRIERSON, 

President of the Court, 



TUESDAY, MAY 28, 1867. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A. M. 

The Hon. J. B, Friersou, President, in the chair. 

The Managers for the State and their Counsel, and Respondent 
and his Counsel, being present in the Court, 

The Roll was called. 

Present 19 

Absent >. 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson, and the President. 

The President announced a quorum present, and the proceed- 
ings of yesterday were read and approved. 

Hon. Horace Maynard, Counsel for the State, opened his argu- 
ment in the cause. 

Pending which, the hour for adjournment having arrived. 

The member from White, Mr. Bosson, moved an adjournment 
to 9 o'clock, A. M., to-morrow. 

The motion carried. 

And it was ordered by the President, that the Court stand ad- 
journedj to meet at 9 o'clock, A. M. to-morrow, under the Rule. 

JOSHUA B. FRIERSON, 

President of the Court. 



100 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



WEDNESDAY, MAY 29, 1867. 

The Senate, as a Hi^^h Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A. M. 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State, and their Counsel, and Respond- 
ent and his Counsel, being present in the Court, 

The Roll was called. 

Present 19 

Absent __ _ 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson, and the President. 

The President announced a quorum present, and the proceed- 
ings of yesterday were read and approved. 

The Member from Madson, Mr. McFarland, offered. Motion No. 
31, to-wit: 

"Resolved hy the Court, That on and after to-day, this Court 
will meet at 9 o'clock, A. M., and adjourn at 12 o'clock, M., re- 
assemble at 2 o'clock, P. M., and adjourn at 41 o'clock, P. M." 

The question on the adoption of the motion was taken by ayes 
and noes. 

Ayes _ __ 8 

Noes - 11 

Members voting aye, were: 

Aldridge, Carrigan, Johnson, McKinney, McFarland, Senter, 
Thompson and Robinson. 

Members voting no, were: 

Bosson, Cate, Hall, Keith, KcElwee, Nelson, Powell, Patter- 
son, Smith, Spence, and the President. 
And the motion was lost. 



HIGH COURT OF IMPEACHMENT. 101 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



Hon. Horace Maynarcl, Counsel, resumed and concluded his 
argument on behalf of the State. 

The Hon. Jno. S. Brien, Counsel for Respondent, following, 
opened his argument in that behalf. 

Pending which, the hour for adjournment having arrived, 

The member from Warren, Mr. Thompson, moved an adjourn- 
ment to 9 o'clock, A. M., to-morrow. 

The motion carried. 

And it was ordered by the President, that the Court stand ad- 
journed, to meet at 9 o'clock, A. M., to-morrow, under the Rule. 

JOSHUA B. FRIERSON, 

President of the Court. 



THURSDAY, MAY 30, 1867. 



The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A. M. 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State and their Counsel, and Respond- 
ent and his Counsel, being present in the Court, 

The Roll was called. 

Present . 19 

Absent _ _ 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson, and the President. 

The President announced a quorum present, and the proceed- 
ings of yesterday were read and approved. 



102 HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Hon. John S. Brien, Counsel, resumed and concluded his argu- 
ment in behalf of the Respondent. 

Ed. H. Ewing, Esq., Counsel, opened his argument in behalf 
of the Respondent. 

Pending which, the hour for adjournment having arrived, 

The member from Green, Mr. Powell, moved an adjournment, 
to 9 o'clock, A. M., to-morrow. 

The motion carried. 

And it was ordered by the President, that the Court stand ad- 
journed, to meet at 9 o'clock, A. M., to-morrow, under the Rule. 

JOSHUA B. FRIERSON, 

President of the Court. 



FRIDAY, MAY 31, 1867. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A, M. 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State, and their Counsel, and Respond- 
ent and his Counsel, being present in the Court, 

The roll was called. 

Present . __19 

Absent 

Members, present, were: 

Aldridge, Bosson, Gate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Thompson, Robinson, and the President. 

The President announced a quorum present, and the proceed- 
ings of yesterday were read and approved. 



HIGH COURT OF IMPEACHMENT. 103 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



Mr. Ewing, Counsel for Respondent, resumed his argument. 

Pending which, 

The member from White Mr. Bosson, moved an adjournment, 
to 2 o'clock, P. M. 

The motion carried. 

And it was ordered by the President, that the Court stand ad- 
journed, to meet at 2 o'clock, P. M. 



AFTERNOON SESSION. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 2 o'clock, P. M. 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State and their Counsel, and Respondent 
and his Counsel, being present in the Court, 

The roll was called. 

Present 15 

Absent _- 4 

Members present, were: 

Aldridge, Bosson, Carrigan, Hall, Johnson, Keith, McKinney, 
McElwee, McFarland, Nelson, Powell, Smith, Senter, Spence and 
the President. 

Members absent, were: 

Cate, Patterson, Thompson and Robinson. 

Messrs. Cate, Robinson and Patterson came in, and their names 
were called. 

Present 18 

Absent 1 

The member from Warren, Mr. Thompson, being absent, on 
account of indisposition, and there being no objection to proceed- 
ing with the cause, 



104 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Mr. Ewing, Counsel, resumed and concluded his argument on 
behalf of the Respondent, 

The member from White, Mr. Bosson, moved an adjournment 
to 9 o'clock, A. M., to-morrow. 

The motion carried. 

And it was ordered by the President, that the Court stand ad- 
jourtel to meet at 9 o'clock, A. M,, to-morrow, under the Rule. 

JOSHUA B. FRIERSON, 

President of the Court. 



SATURDAY, JUNE 1, 186T. 

The Senate, as a High Court of Impeachment, met pur- 
suant to its adjournment, at 9 o'clock, A. M., 

The Hon. J. B, Frierson, President, in the chair. 

The Managers for the State and their Counsel, and the Re- 
spondent and his Counsel, being present in the Court, 

The Roll was called. 

Present 18 

Absent 1 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland Nelson, Powell, Patterson, Smith, 
Senter, Spence, Robinson, and the President. 

Member absent, was: 
Thompson. 

The President announced a quorum present, and proceedings 
of yesterday were read and approved. 



HIGH COURT OF IMPEACHMENT. 105 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The member from Warren, Mr. Thompson, being absent, and 
there being no objections raised to proceeding with the cause, 

Hon, John Trimble, Counsel, opened his argument, in behalf 
of the State. 

Pending which, 

The member from Warren, Mr. Thompson, came in and took 
his seat. 

Mr. Trimble, Counsel for the State, having concluded his argu- 
ment in the cause, 

The member from Shelby, Mr. Smith, moved an adjournment 
to 9 o'clock, A. M., Monday next. 

The motion was withdrawn. 

The member from Lincoln, Mr. Carrigan, moved an adjourn- 
ment to 2 o'clock, P. M. 

The member from White, Mr. Bosson, moved an adjournment 
to 9 o'clock, A. M., Monday next. 

In questions of adjournment, the longest time takes the prece- 
dence. 

The question on the motion to adjourn to 9 o'clock, A. M., 
Monday next, was taken by ayes and noes. 

Ayes _ _ 6 

Noes 12 

Members voting aye, were: 

Aldridge, Bosson, McElvvee, Patterson, Smith and Robinson. 

Members voting no, were: 

Cate, Carrigan, Hall, Johnson, Keith, McKiimey, McFarland, 
l^elson, Powell, Senter, Spence and the President. 

And the motion to adjourn to 9 o'clock, A. M., Monday next, 
was lost. 

The member from Hawkins, Mr. McKinney, moved to amend 
the motion to adjourn to 2 o'clock, P. M., by adjourning to 21 
o'clock, P. M. 

The amendment was accepted, and the motion carried. 

And it was ordered by the President, that the Court stand ad- 
journed to meet at half after 2 o'clock, P. M, 



106 HIGH COURT OF DiPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



AFTERNOON SESSION. 



The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at half-past 2 o'clock, P. M., 

The Hon, J. B. Frierson, President, in the chair. 

The member from Granger, Mr. Senter, offered. Motion No. 32, 
to- wit: 

^'BesoJved hy the Court, That the Court order to be printed, 
two copies of the proceedings of this Court, for the use of the 
members of this Court, and fifty copies to be placed in the Li- 
brary of the State; also, the argument of the counsel on each 
side."" 

The member from Washington, Mr. Nelson, offered Motion 
No. 33, in lieu, to~wit: 

'^Besolved hy this Court, That two hundred and fifty copies of 
the proceedings, in the case of Impeachment of Thomas N. Fra- 
zier, Judge of the Criminal Court of Davidson County, Tenn., 
together with the official report of the testimony and arguments, 
be printed, and bound in leather, for distribution, as follows: 
one copy to each member of the Senate and House of Represent- 
atives, and one to each of the officers thereof; one copy to each 
of the Counsel in the case, and to the Respondent, and the resi^ 
due to be placed in the State Library, at the disposal of the pro- 
per authorities thereof." 

The motion offered was accepted in lieu, and the question on 
its adoption, was taken by ayes and noes. 

Ayes 18 

Noes 

Members voting aye, were: 

Aid ridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kiuney, McElwee, McFarland, Nelson, Powell, Patterson, 
Smith, Senter, Spence, Robinson, and the President. 



HIGH COURT OF IMPEACHMENT. 107 

The People of Tennessee vs. Thomas N. Frazior, Judge, etc. 

The member from Warren, Mr. Thompson, being absent from 
indisposition, and not voting. 

And the motion carried. 

The member from McNairy, Mr. Aldridge, moved an adjourn- 
ment to 9 o'clock, A. M., Monday next. 

The motion carried. 

And it was ordered by the President that the Conrt stand ad- 
journed, to meet at 9 o'clock, A. M., Monday next. 

JOSHUA B. FRIEESON, 

President of the Court. 



MONDAY, JUNE 3, 1867. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 9 o'cl(?ck, A. M. 

The Hon. J. B. Frierson, President, in the chair. 

The Managers for the State, and their Counsel, and Respond- 
ent and his Counsel, being present in the Court, 

The roll was called. 

Present 18 

Absent 1 

Members present, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Robinson, and the President. 

Member absent, was: 
Thompson. 



108 HIGH COURT OF IMPEACHMENT. 

The People of Tenneesee vs. Thomas N. Frazier, Judge, etc. 

The member from Marshall, Mr. Johnson, arose and stated to 
the Court, that the member from Warren, Mr. Thompson, was 
dangerously ill at his room, and, therefore, not able to be present 
in the Court. 

The President announced a quorum present, and the proceed- 
ings of Saturday were read. 

The member from Washington, Mr. Nelson, moved that the 
records of Saturday be now approved. 

And on the question, the member from Marshall, Mr. Johnson, 
called the ayes and noes. 

Ayes 15 

Noes. -- _-- 3 

Members voting aye, were: 

Aldridge, Bosson, Gate, Carrigan, Hall, Keith, McKinney, 
McElwee, Nelson, Powell, Patterson, Smith, Spence, Robinson, 
and the President. 

Members voting no, were: 
Johnson, McFarland, and Senter. 

The member from Warren, Mr. Thompson, being absent and 
not voting. 

And the motion carried, and the records were approved. 

The member from White, Mr. Bosson, put the question to the 
Court, and to the Managers for the State, and Respondent, 
whether the absence of the member from Warren, Mr. Thompson, 
from indisposition, would make any difference now in the final 
determination of the Court. 

The Managers for the State, by their Counsel, waived any and 
all objections on that behalf, on their pant, and Respondent, by 
his Counsel, stated, that while he had no authority to waive any 
objections to the absence of the member from Warren, Mr. 
Thompson, he stated that it would make no difference if his 
name was counted on the final vote. 



HIGH COURT OF IMPEACHMENT. 109 

The People of Tennessee vs, Thomas N. Frazier, Judge, etc. 

The member from Madison, Mr. McFcarland, offered Motion No. 
34, to-wit: 

"3Ir. President : 

"I move that the main question, upon a final vote in this 
cause, shall be put in the following form: "Shall the charge Tuade 
in Article 1st, to-wit: 'that the said Thomas N. Frazier, Judge 
as aforesaid, did, corruptly, willfully, maliciously, feloniously, and 
with the intent of committing a breach of the privileges of the 
said House, and with the intent, corruptly, willfully, maliciously 
and feloniously, of defeating the presence of a quorum of said 
House, and to disrupt and break up the same, issue a writ of ha- 
heaf; corpus^ and cause the same to be served upon the said Heydt/ 
be sustained .f* 

"Shall the second charge in Article 1st, to-wit: 'That said 
Frazier, Judge as aforesaid, disregarding all these facts, did refuse 
to accept the said return of said Heydt, to said wnit, and did cor- 
ruptly, willfully and maliciously, and feloniously issue an attach- 
ment against said Heydt, Sergeant-at-Arms, as aforesaid/ be 
sustained.? 

"Shall the first charge in Article 2d, to-wit: 'That the said 
Thomas N. Frazier, Judge of the Criminal Court, of the County 
of Davidson, and State of Tennessee, corruptly, willfully, malici- 
ously, feloniously, and by the exercise of illegal power and au- 
thority, and an assumption of unprecedented judicial functions, 
did cause the release of Pleasant Williams, a member of the 
House of Representatives, of the Greneral Assembly of the State 
of Tennessee, etc.,' be sustained.? 

"Shall the second charge in Article 2d, to-wit: 'That he, the 
said Frazier, Judge, as aforesaid, did, willfully, and maliciously 
and corruptly, cause the said Pleydt, Sergeant-at-Arms, as afore- 
said, (well knowing that he, the said Heydt, was a Sergeant-at- 
Arms of the said House,) to be arrested and brought before him, 
the said Frazier, Judge, as aforesaid, by the Sheriff of the said 
County of Davidson, etc./ be sustained.? 

The member from Hamilton, Mr. Cate, offered Motion No. 35' 
jU lieu of Motion No. 34, to-wit: 



no HIGH COURT OF IMPEACBMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



''Besolved hy the Cout't, That the first Article of Impeachment 
be read, and the vote taken thereon; then the second Article be 
read, and take the vote on the same, which shall be final." 

The motion offered in lieu, was withdrawn. 
The member from Greene, Mr. Powell, moved to lay Motion 
No. 34, on the table. 

And, on the question, the vote was taken by ayes and noes. 

Ayes --- - 14 

Noes 4 

Members voting aye, were: 

Aldridge, Bosson, Gate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Senter, Spence, Kobiuson and the 
President. 

Meml)ers voting no, were: 
Garrigan, Johnson^ McFarland and Smith. 
The member from Warren, Mr. Thompson, being absent and 
not voting. 

The motion carried, and the motion was tabled. 

The member from Madison, Mr. McFarland, offered Motion No. 
36, to-wit: 

^^ Resolved hy the Court, That the doors of the Senate Ghamber 
be left open, while the decision is being made in this cause." 

The question on the motion, was taken by ayes and noes. 

Ayes 10 

Noes _ __- _- 8 

Members voting aye, were: 

Bosson, Garrigan, Hall, Johnson, Keith, McKinney, McFar- 
land, Smith, Kobinson and the President. 

Members voting no, were: 

Aldridge, Gate, McElwee, Nelson, Powell, Patterson, Sentei" 
and Spence. 



HIGH COURT OF IMPEACHMENT. Ill 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The member from Warren, Mr. Thompson, "being absent and 
not voting. 

The motion carried. 

The member from Washington, Mr. Nelson, offered Motion No. 
37, to- wit: 

"Iiesolved hy the Court, that this High Court of Impeachment, 
will now pronounce judgment, in the case of Thomas N. Erazier, 
Judge of the Criminal Court of Davidson County, Tennessee." 

The question on the motion, was taken by ayes and noes. 

Ayes.._. _ 18 

Nues .-- - 

Members voting aye, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McEarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Eobinson and the President. 

Mr. Thompson being absent and not voting. 

And the motion carried. 

The first Article of the Impeachment was then read by the 
Clerk. 

The President announced the question before the Court for its 
decision, to be: 

"Is the Kespondent guilty, or not guiltj^, of the fact, as charged 
in said 1st Article of the Im})eachment;" 

And stated that, in determining this question, the members who 
adjudge the Respondent guilty, when their names were called, 
would vote, aye; and those who adjudged him not guilty, when 
their names were called, would vote, no. 

The member from Madison, Mr. McEarland, called for a di- 
vision of the question, on the first Article. 

The call was withdrawn. 

The vote was then taken by ayes and noes. 

Ayes ._ 14 

Noes 4 



112 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Members voting aye, were: 

Aldridge, Bosson, Cate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Senter, Spence, Eobinson and the 
President. 

Members voting no, were: 

Cr.rrigan, Johnson, McFarland and Smith. 

Mr. Thompson being absent and not voting. 

Article No. I of the Impeachment was sustained, and two- 
thirds of the members of the Court, by their votes, pronounced 
Thomas N. Frazier, Judge, etc., guilty, as charged in the 1st Ar- 
ticle of the Impeachment. 

The 2d Article of the Impeachment was then read by the 
Clerk. 

The President announced the question before the Court for its 
decision, to be: 

"Is the Respondent guilty, or not guilty, of the fact charged 
in the 2d Article of the Impeachment.^" 

And stated, that, in the decision of the question, the members 
who adjudged the Respondent guilty, when their names were 
called, would vote aye; and those who adjudged him not guilty, 
when their names were called, would vote no. 

The vote was then taken by ayes and noes. 

Ayes___ _ 14 

Noes - 4 

Members voting aye, were: 

Ahlridgp, Bosson, Cate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Senter, Spence, Robinson and the 
President. 

Members voting no, were: 

Carrigan, Johnson, McFarland and Smith. 

Mr. Thompson being absent, and not voting. 

Article No. 2 of the Impeachment was sustained, and two- 
thirds of the members of the Court, by their votes, pronounced 



HIGH COURT OF IMPEACHMENT. 113 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Thomas N. Frazier, Judge, etc., gnilty, as charged in the 2d Ar- 
ticle of the Impeachment. 

The member from Dyer, Mr. Hall, presented Communication 
No. 10, in the nature of a written opinion, to-wit: 

'^lieasons presented hy TV. K. Hall, for Ms decision, as one of the 

members of the Court, in the Impeachment case of the State 

of Tennessee vs. T. N. Frazier: 

"I feel constrained, in the exercise of the high duty imposed 
upon me, hy law, laying aside all possible influences of prejudice, 
and guided alone by the law and the testimony presented and 
bearing on the question involved, to decide affirmatively upon the 
two Articles of Impeachment preferred; and in reference to this 
action on my part, I beg leave to state, first, as to the sufiiciency, 
in law, of those Articles. Whatever may be said, it is clear to 
my mind, that the offense alleged and charged, in law, is full and 
sufficient to support the action taken; that the ends, which, 
under a reasonable construction, must have been contemplated, 
constitute grounds of offense far beyond what is meant by misde- 
meanor, and must fall within the definition of crime. The infrac- 
tion of the rights, authority and powers of the legislative depart- 
ment of the State Government, is surely an offense of high grade, 
and cannot be classed with that description of offenses known as 
misdemeanors, simply, 

"As to the legal authorities, I am well satisfied that our Con- 
stitution, and the undoubted provisions of parliamentary law, in- 
vest the legislative department of our State with all the powers, 
privileges and authorities, claimed for it by the Counsel for the 
prosecution, and that the same vests as soon as the body is con- 
stituted, by the meeting of a full quorum, and the election of 
proper officers; and that thereafter, at any succeeding session, 
regular or extraordinary, a less number than a quorum would rep- 
resent the full legal rights of that body, in the maintainance of 
its dignity and decorum, and in the enforcement of the attend- 
ance of absent or refractory members; and hence, that the inter- 
position of authority by the Respondent, under the circumstances 
as proven, was unwarranted, and not only in contempt of the 



114 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

House of Representatives, but an indirect invasion of the sove- 
reign rights of the people of the State. Such is the light in which 
I am compelled to view the acts of the Respondent, abstractly 
considered. 

"As to the intent with which the Respondent's acts were per- 
formed, looking carefully to the testimony, it is clear to my mind, 
that he acted deliberately, with the following facts clearly before 
him: First, that a conspiracy had been set on foot, and existed in 
the State, and was aided by persons without the State, to inter- 
fere with the legitimate organization and lawful actions of the 
State Government; and second, that the conduct of the refrac- 
tory members of the Legislature was unlawful, unauthorized, and 
.in concert with the prime movers of said conspiracy; and third, 
that the Respondent knew, and intended his action, to aid in 
those unlawful purposes. In addition, the proof is conclusive, to 
my mind, that the Respondent, instead of seeking to be governed 
by the law, as he was bound to do, only, and studiously, sought 
for pretexts of a legal character, to cover, if possible, his wanton 
violation of the plainest principles of constitutional, common and 
statutory laws; hence, the offense being fully defined in the com- 
plaint, and well supported by the proof, leaving no reasonable 
doubt present in my mind, I give this, my decision, with the firm 
conviction of its justness and truth." 

The member from Marshall, Mr. Johnson, presented Communi- 
cation No. 11, in the nature of a written opinion, to-wit: 

"3I/\ President: 

"We are certain, that, in contemplation of law, and in fact, 
the State has presented 7io evidence, to sustain the charges pre- 
ferred against Judge Frazier. We refer to the authorized re- 
ports of the proceedings of this Court, for the proof, and the 
law of the case, as given by counsel. In view of that record, 
and of the solemn oath taken by us, Veil and truly to try the 
issue joined, upou the evidence mid the laiv, and true deliverence 

make,' &c., we vote, not guilty." "W. J. McFahland, 

"J. D. Johnson, 
"Joe. G. Carrigan, 
"James P. Thompton, 
'■By J. D. Johnson." 



HIGH COURT OF IMPEACHMENT. 115 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The President then declared, that the Respondent, Thomas N". 
Frazier, Judge, &c., had been found guilty of the facts charged 
in the 1st and 2d Articles of the Impeachment, by a vote of two- 
thirds of the sworn members of the Court. 

The member from Madison, Mr. McFarland, offered Motion 
No. 38, to-wit: 

"Hesolved hi/the Court, That the judgment of this Court of Im- 
peachment, in the case of the State of Tennessee vs. Thomas N, 
Frazier, shall only extend to removal from ofl&ce, and not to a 
disqualification to fill any office hereafter." 

The member from Rutherford, Mr. Spence moved to lay th8 
motion on the table. 

And the question on the motion to table, was taken by ayes 
and noes. 

Ayes 14 

Noes 4 

Members voting aye, were: 

Aldridge, Bosson, Cate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Senter, Spence, Robinson, and the 
President. 

Members voting no, were: 
Carrigan, Johnson, McFarland and Smith. 
Mr. Thompson being absent, and not voting. 
And the motion to table, carried. 

The Member from Hamilton, Mr. Cate, offered Motion No. 3 9 

to-wit: 

"Whereas, The Senate of the State of Tennessee, sitting as 
a High Court of Impeachment, upon the trial of Thomas N. 
Frazier, Judge of the Criminal Court of Davinson County, and 
State of Tennessee, upon Articles of Impeachment, duly j)re- 
ferred by the House of Representatives of the General Assembly 
of the State of Tennessee, having duly heard the evidence and 
arguments of Counsel thereon; and lohereas, having voted, by 
ayes and noes, upon the charges contained in the Articles of Im- 
peachment, and two-thirds of said Senate having pronounced the 
said Thomas N. Frazier, Judge, as aforesaid, duly guilty thereof, 



116 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

as provided in, and required by tlie Constitution of the State of 
Tennessee; Therefore, 

"Be it resolved, (by two-thirds of the Senators sworn,) That 
Thomas N. Frazier, Judge of the Criminal Court of the County 
of Davidson, and State of Tennessee, he removed from his said 
office as Judge of said Criminal Court of Davidson County, and 
be disqualified to fill any office hereafter in the State of Tennes- 
see, and that judgment be entered accordingly." 

The question on the motion was taken by ayes and noes. 

Ayes __.-_ 14 

Noes - 4 

Members voting aye, were: 

Aldridge, Bosson, Cate, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Senter, Spence, Piobinsoii, and the 
President. 

Members voting no, were: 
Carrigan, Johnson, McFarland and Smith. 
Mr, Thompson being absent, and not voting. 
And the motion was adopted. 

Thereupon, the President solemnly proceeded to pronounce the 
judgment of the Court, as follows: 

" The Hon. Thomas N. Frazier, having been found guilty, as 
charged in the Articles of Impeachment, it is, therefore, ordered, 
adjudged and decreed, by this High Court of Impeachment, that 
the said Thomas N. Frazier, Judge of the Criminal Court of 
Davidson County, in the State of Tennessee, be, and he is hereby, 
declared, (according to the Constitution of the State, and the 
vote of this body. Constitutionally passed,) to be removed from 
his said office of Judge, as aforesaid, and also, disqualified from 
holding any office hereafter, in this State." 

The member from Grainger, Mr. Senter, moved an adjourn- 
ment, to 2 o'clock, P. M. 

The motion carried. 

And it was ordered by the President, that the Court stand ad- 
journed, to meet at 2 o'clock, P. M. 



HIGH COURT OF IMPEACHMENT. 117 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 



EVENING SESSION. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 2 o'clock, P. M. 

The Hon. J. B. Frierson, President, in the chair. 

The member from Grainger, Mr. Senter, offered Motion No. 40, 
to-wit: 

^'■Resolved by the Court, H. M, Coburn, Reporter of this Court^ 
be allowed a reasonable time to complete his report, and place 
the same in the hands of the Public Printer, for publication; and 
as soon as this work is completed, he shall receive as compensa- 
tion, for his services, the sum of eight ($8) dollars per day, upon 
proof being made before the Secretary of State, that the time 
charged was necessary to complete the work, counting^rom the 
time he was sworn in." 

The vote on the adoption of the motion was taken by ayes and 
noes. 

Ayes 11 

Noes 4 

Members voting aye, were: 

Bosson, Johnson, McKinney, McElwee, McFarland, Nelson, 
Powell, Patterson, Senter, Robinson, and the President. 

Members voting no, were: 
Carrigan, Hall, Smith and Spence. 

Messrs. Aldridge, Gate, Keith and Thompson, being absent and 
not voting. 

The President announced there was no quorum voting, and or- 
dered the Sergeant-at-Arms to proceed and bring in the absent 
members. 

Mr. Gate came in, and his name was called, and he voted no. 

Mr. Aldridge came in, and his name was called, and he voted 
aye. 



118 HIGH COURT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Ayes 12 

Noes..- 5 

And the motion was adopted. 

The member from Lincoln, Mr. Carrigan, offered Motion No. 
41, to-wit: 

"Resolved hy the Court, That the following be the acknowledg- 
ed list of Expenses of this Court of Impeachment, in the case of 
^The People of Tennessee vs. Thomas N. Frazier, Judge, etc.,' and 
the same shall be signed by the President of the Court, in his 
oificial capacity, and by order of the Court." 

The member from Madison, Mr. McFarland, offered the follow- 
rg amendment, to-wit: 

"Amend by striking out, wherever it occurs, ^SQ days,' and 
insert '30 days.' " 

The vote on the adoption of the amendment, was taken by ayes 
and noes. 

Ayes 5 

Noes 12 

Members voting aye, were: 

Bosson, Johnson, McFarland, Smith and the President. 

Members voting no, were: 

Aldridge, Cate, Carrigan, Hall, Keith, McKinney, McElwee, 
Nelson, Powell, Patterson, Spence and Robinson. 

Messrs. Senter and Thompson, being absent, and not voting. 

And the amendment was lost. 

Oq motion of the member from Hawkins, Mr. McKinney, the 
blank in the list of expenses, opposite the name of B. Frazier, 
was filled up with "SQ days." 

The member from Grainger, Mr. Senter^ moved that the Court 
now stand adjourned, sine die. 

And on the question, the vote was taken by ayes and noes. 

Ayes __ 4 

Noes 14 



HIGH COURT OF IMPEACHMENT. 119 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Members voting aye, were: 

Carrigan, Johnson, McFarland and Senter. 

Members voting no, were: 

Aldridge, Bosson, Gate, Hall, Keith, McKlnney, McElwee, 
Nelson, Powell, Patterson, Smith, Spence, Eobinson, and the 
President. 

And the motion was lost. 

The member from Madison, Mr. McFarland, moved to fill up 
the blank, in the list of expenses, opposite the names of the 
Counsel for the State, with "30 days." 

The question on the motion was taken by ayes and noes. 

Ayes 6 

Noes 12 

Members voting aye, were: 

Bosson, Carrigan, Johnson, McKinney, McFarland, and Nelson. 

Members voting no, were: 

Aldridge, Gate, Hall, Keith, McElwee, Powell, Patterson, 
Smith, Senter, Spence, Robinson, and the President. 
Mr. Thompson being absent and not voting. 
And the motion was lost. 

The member from McNairy, Mr. Aldridge, moved to fill up the 
blank in the list of expenses, opposite the names of the Counsel 
for the State, with the words "86 days." 

The vote on the motion was taken by ayes and noes. 

Ayes 11 

Noes 7 

Members voting aye, were: 

Aldridge, Hall, Keith, McKinney, McElwee, Powell, Patter- 
son, Smith, Spence, Robinson, and the President. 

Members voting no, were: 

Bosson, Gate, Carrigan, Johnson, McFarland, Nelson, and Sen- 
ter. 



120 HIGH COUET OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

Mr. Thompson being absent, and not voting. 
And the motion was adopted. 

The member from Dyer, Mr. Hall, moved to fill up the blanks 
for per diem, in the list of expenses, with six ($6) dollars. 
And on the motion, the vote was taken by ayes and noes. 

Ayes 10 

Noes ■ 8 

Members voting aye, were: 

Aldridge, Hall, Keith, McKinney, McElwee, Powell, Patter- 
son, Senter, Spence, and Robinson. 

Members voting no, were: 

Bosson, Gate, Carrigan, Johnson, McFarland, Nelson, Smith, 
and the President. 

Mr. Thompson being absent, and not voting. 
And the motion was adopted. 

List of Expenses Accompanying Motion No. 41: 

"A statement, showing the expenses of the Court of Impeach- 
ment, constituted March 11, 1867, to try the case, in which 
the State of Tennessee is plaintiff, and Thomas N. Frazier, 
Judge, etc., is defendant; said expenses, being authorized, by 
Act of Assembly, passed March 8, 1867, and recorded in the 
printed Acts, for the years 1866 and 1867, ch. 48, sec. 17, p. 
80, the same being in words and figures, as follows, to-wit: 
"Sec. 17. Be it fwiJier enacted, That there shall be paid, as 
compensation to the presiding officer of the Senate, and Senators 
sitting as a Court of Impeachment, (in the case of Thomas N. 
Frazier,) and its officers, and to the Managers and Counsel on 
the part of the House of Representatives, the smie per diem 
herein provided to be paid to the Speaker of the Senate, and 
Senators and officers; payable in the same manner, with mileage 
also, at the same rate, in coming to and going from, the Capitol. 
There shall also be paid a sum for necessary expenses attending 
said trial, to be received and disbursed by the presiding officer of 
the Court; and the Comptroller shall audit the accounts, and is- 



HIGH COURT OF IMPEACHMENT. 



121 



The People of Tennessee vs. Thomas N. Frcazier, Judge, etc. 

sue warrants for said compensation to such presiding officer, Sena- 
tors and officers, and to said Managers and Counsel of the House, 
and necessary expenses." 



NAMES OF SENATORS, 



Aldrige, John. 

Bosson, William. 

Gate, A. M. 

Carrigan, Jo. G. 

Frierson, J. B., President 

Frazier, B. 

Hall, W. K. 

Johnson, J. D. 

Keith, G. W. 

McKinney, C. J. 

McEhvee, Thos. B. 

McFarland, W. J. 

Nelson, P. P. C. 

Powell, Joseph. 

Patterson, H. S. 

EobinsoD, W. T, 

Smith. .J no. W. 

Senter, D. W. C. 

Spence, William. 

Thompson, J. P. 

OFFICERS. 

Flagg, H. Ct , P. C. 

Ncwland, Clay, E.G. 

Cate, W. T. 

Smith, B F. 

Hickman, Wade, Porter. 

Cobnrn, H. M., Reporter, 
$8 per day, as per Mo- 
tion No. 40. 



86 
86 
86 
86 
86 
86 
86 
86 
86 
86 
86 
86 
86 
86 
86 
86 
86 
86 
86 
86 



Per 
Diem 



$516 00 
516 00 
516 00 

516 oe 

516 00 
516 00 
516 00 
516 00 
516 GO 
516 00 
516 00 
516 00 
516 00 
516 00 
516 00 
516 00 
516 00 
516 00 
516 00 
516 00 



86 


516 00 


86 


516 00 


86 


516 00 


86 


516 00 


86 


616 00 



Miles 


Mileage 


Total. 


Traveled. 






600 


$96 00 


$612 00 


170 


27 20 


548 20 


342 


54 70 


670 70 


180 


28 80 


544 80 


108 


16 96 


632 96 


546 


87 37 


603 37 


600 


96 00 


612 00 


138 


22 08 


538 08 


620 


99 20 


615 20 


660 


105 60 


621 60 


412 


65 95 


581 95 


600 


96 00 


612 00 


723 


115 68 


631 68 


672 


107 52 


623 52 


120 


19 20 


635 20 


120 


19 20 


635 20 


600 


96 00 


612 00 


596 


95 36 


611 -36 


60 


9 60 


625 60 


210 


33 60 


549 eo 


676 


108 16 


624 16 


620 


99 20 


615 20 


420 


67 84 


583 84 


60J 


96 96 


612 96 



122 



HIGH COURT OF IMPEACHMENT. 



The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 









, 








cS 














Per 


Miles 


Mileage. 


Total. 




o 


Diem. 


Traveled. 








;! 










MANAGERS. 












Duggan, Wilson. 


86 


$516 00 


600 


§^96 00 


$612 00 


Fiison, John A. 


86 


616 00 


1?0 


19 20 


535 20 


Smith, W.J. 


86 


516 00 


620 


99 20 


015 20 


COUNSEL FOR STATE. 












Maynard, Horace. 


86 


516 00 








Ti-imble, John. 


86 


516 00 








Patterson, N. A. 


86 


516 00 








Noah, J. J. 


86 


516 00 








NECESSARY EXPENSE 












Postage Stamps. 










81 00 


Sulphur Water. 










8 00 


DAILY PAPERS. 












Press and Times. 










41 25 


Union and Dispatch. 










31 25 


250 Copies of the Jour- 












nal of the Court, and the 












Testimony and Argu- 












ments, as Reported, etc., 












as per Motion No. 33. 












Public Printer, per Act 












for Printing 140 Copies 












of Articles of Impeach- 












ment, and Answer, etc.. 












and 100 Copies of Rules 












of Order of the Court. 










99 42 J 



The question was tlien taken on the adoption of Motion No. 
41, and the approval of expenses, set out in the list of expenses, 
referred to therein; and on the question the vote was taken by- 
ayes and noes. 



Ayes. 
Noes. 



11 

6 



Members voting aye, were: 

Aldridge, Gate, Hall, Keith, McKinney, McElwee, Powell, 
Patterson, Senter, Spence, and Robinson. 

Members voting no, were: 

BossoD, Carrigan, Johnson, McFarland, Nelson, and Smith. 
On motion of the member from Grainger, Mr. Senter, the 
President was excused from voting on the proposition. 
Mr. Thompson being absent, and not voting. 



HIGH COURT OF IMPEACHMENT. 123 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

And Motion No. 41 was adopted, and the list of Expenses re- 
ferred to therein, approved. 

The member from Hamilton, Mr. Gate, moved an adjournment 
to 9 o'clock to-morrow. 

The motion carried. 

And it was ordered by the President, that the Court stand 
adjourned, to meet at 9 o'clock, A. M., to-morrow, under the Rule. 

JOSHUA B. FRIERSON, 

Preside7it of the Court. 



TUESDAY, JUNE 4, 1867. 

The Senate, as a High Court of Impeachment, met pursuant 
to its adjournment, at 9 o'clock, A. M. 

The Hon. J. B. Frierson, President, in the chair. 
The roll was called. 

Present 18 

Absent _ 1 

Members present, were: 

Aldridge, Bosson, Gate, Carrigan, Hall, Johnson, Keith, Mc- 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Robinson and the President. 

Member absent, was: 
Thompson. 

The member from Warren, Mr. Thompson, being absent, from 
indisposition. 

The President announced a quorum present, and the proceed- 
ings of Saturday were read and approved. 

The Records of the Court for to-day, were then read and ap- 
proved. 



124 HIGH COuRT OF IMPEACHMENT. 

The People of Tennessee vs. Thomas N. Frazier, Judge, etc. 

The member from Washington^ Mr. Nelson, moved that this 
High Court of Impeachment now stand adjourned sine die. 
On that question the vote was taken by ayes and noes. 

Ayes 18 

Noes 

Members voting aye, were: 

Aldridge, Bosson, Cate, Carrigan, Hall, Johnson, Keith, Mc- ^ 
Kinney, McElwee, McFarland, Nelson, Powell, Patterson, Smith, 
Senter, Spence, Robinson and the President. 

The motion carried. 

And it was ordered by His Honor, Joshua B. Frierson, Pres- 
ident, that this High Court of Impeachment, be, and is now de- 
clared, adjourned sine die. 

JOSHUA B. FRIERSON, 

President of the Court. 
Official: 

H. G. FLAGG, 

P. C. of the Court. 



FORM OF SUBPCENA AND SUMMONS. 



SENATE CHAMBER, NASHVILLE, TENN.: 

The Senate of the State of Tennessee, 

To , Greeting: 

You, and each of j'ou, are hereby conamanded to appear before 
the Senate of the State of Tennessee, sitting as a High Court 

of Impeachment, on the — day of , A. D., 1867, at the 

Senate Chamber, in the City of Nashville, the Capital of the 

State of Tennessee, at the hour of — o'clock, ; then and 

there to testify, on behalf of , your knowledge in 

the cause which is before the Senate, in which the House of Rep- 
resentatives of the State of Tennessee have impeached Thomas 
N, Frazier. Fail not. 

Witness, J. B. Frierson, President of the Senate, sitting as 
a Court of Impeachment, at the Capitol of the State, in Nash- 
ville, Tenn., this — day of , in the year of our Lord one 

thousand eight hundred and sixtj^-seven, and of the Independence 
of the United States, the ninety-first. 

President of the Senate, etc., as a Court of Impeachment 

Witness, H. G. Flagg, Principal Clerk of the Senate as afore- 
said, at the Senate Chamber, in the Capitol of the State, at 

Nashville, Tenn., the — day of , A. D., 1867, and the 

"ninery-first year of American Independence. 

P. C. of the Senate, etc., as a Court of Impeachment. 



senate chamber, NASHVILLE, TENN.t 

The Senate of the State of Tennessee, 

To Wm. T. Gate, Sergeant-at-Arms, Greeting: 
You are hereby commanded to deliver to and leave with 

. . , if to be found, a true and attested copy of the 

within writ of summons, together with a like copy of this precept, 
shewing him both; or, in case he cannot, with convenience, be 
found, you are to leave true and attested copies of the said sum- 



mons and precept, at his usual place of residence; and whichever 
way you perform the service, let it be done at least — days be- 
fore the appearance day mentioned in said writ of summons. 
Fail not; and make return of this writ of summons and precept, 
with your proceedings thereon indorsed, on or before the appear- 
ance day mentioned in said writ of summons. 

Witness, J. B. Fkierson, President of the Senate sitting as a 
Court of Impeachment, at the Capitol of the State, in Nashville, 

Tenn., this — day of , in the year of our Lord one thousand 

eight hundred and sixty-seven, and of the Independence of the 
United States, the ninety-first. 

President of the Senate, etc., as a Court of Impeaclime7it. 

Witness, H. G. Flagg, Principal Clerk of the Senate as afore- 
said, at the Senate Chamber, in the Capitol of the State, at Nash- 
ville, Tenn., the — day of , A. D., 1867, and the ninety-first 

year of American Independence. 

P. C. of the Senate, sitting as a Court of Impeachment. 

Official: 

H. G. FLAGG, 

P. C. of the Court. 



Subpoenas and Summonses issued on hehalf of the State. 



No. 


Date. 


Names of Witnesses. 


To wh'm issued 


When 


By whom served. 












Retur'd 






1^0 


7. 












1 


May 


7 


Gov. W. G. Brownlow. 


Serg't-at-Arms 


May 


17 


Serge an t-at-Arms 


2 


tt 


8 


Hon. James MuUins. 


" 


11 


9 


11 


3 


u 


8 


J. C. Martin. 


II 


11 


9 


B. F. Smith. 


4 


It 


8 


Geo. Stubblefield. 


a 


11 


9 


Sergcau t-at-Arms 


5 


u 


8 


Hon. A. J. Fletcher. 


i< 


II 


8 


«t 


6 


" 


8 


Ruck Lewis& Wail eHickman 


It 


II 


9 


(( 


7 


u 


8 


H. M. Bramble, Geo. Craw- 
















ford & Michael J. Houston 


u 


" 


?&9 


II 


8 


11 


8 


Hon. F. S. Richards and 
















Fvucl Housrh. 


II 


11 


14 


Sheriff Shelby Co. 


9 




8 


Ed. H. Gowen. 


(( 


(1 


9 Sergeant-at-Arms 


10 


(I 


8 


Wm. Shane, Wm. Heydt, 
















and Joseph Cheatham. 


II 


11 


10 


II 


11 


11 


8 


Hons. W. J. Smith and J no. 
















A. Fuson. 


It 


u 


8 


<i 


n 


K 


8 


Hon. W. Wines. 


u 


II 


11 


C, Newland. 


13 


ll 


8 


J. N. Dunnaway. 


1( 


II 


17 


J. C. Martin. 


14 


It 


]0 


Hon. H. P. Murphy. 


11 


11 


lOiB. F. Smith. 


15 


11 


11 


Abram Smith. 


u 


II 


10 


u 


16 


11 


13 


Van Taylor. 


ll 






Chas. F. Schmidt, 


17 


" 


14 


Hon. Geo. W. Thompson. 


u 


11 


15 


F. Hybarger. 


18 


11 


14 


Hon. M. E. W. Dunnaway 


If 


fl 


17 


J. C. Manin. 


19 


11 


14 


Ed. Mulloy. 


< 


11 


15 


Serjeant-at-Arms 


20 


II 


15 


Hon. H. H. Harrison. 


II 


11 


16 


B. F. Smith. 


21 


li 


15 


Hon. R.R. Butler. 


ll 


11 


22 


H. P. Murphy. 


22 


U 


16 


Hon. S. M. Arnell. 


II 


11 


16 


B. F. Smith. 


23 


u 


16 


C. S. Diggons, Clerk, etc. 


" 


11 


17 


II 


24 


u 


17 


M. B. Howell. Clk.&Mas.,et(^ 


1. 


II 


17 


11 


25 


" 


18 


Timothy H. Williams. 


u 









Official: 
H. 



JOSHUA B. FRIERSON, 

President of the Court, 



G. FLAGG, 

P. C. of the Court. 



Amount due each Wit^iess and Officer, for mileage and attendance, 
as proven on oath before the P. C. of the Court. 



NAMES OF WITNESSES 
AND OFFICERS. 



H. P. Murphy 

J. N. Dunnaway 

J. C. Martin 

Ruel Hough 

F. S. Ricluirds 

J. T. Cheatham 

H. M. Bramble 

M. J. Houston 

Geo W. Thompson 

Buck Lewis 

Watle Hickman 

F. Hybarger, Officer, Depu- 
ty, serving and returning 
on subpcena, &c., 50 cts. 

Chas. F. Schmidt, Officer, 
Deputy, returning sub- 
poena, &c., 50 cts 

Wm. Heydt 

Abram Smith... 



l-i 

d =« 
6 


a Hi 


> 
o 


s ^ 


o 
> 
p 

"a 
< 


§1 00 


876 


4 cts. 


$41 04 


3 


1 00 


132 


4 " 


8 28 


9 


1 00 


126 


4 " 


14 04 


1 


1 00 


600 


4 " 


25 00 


1 


1 00 


600 


4 " 


25 00 


13 


] 00 






13 00 


13 


1 00 






13 00 


16 


1 00 






16 00 


3 


1 00 


120 


4 " 


7 80 


9 


1 00 






9 00 


9 


1 00 






9 00 


1 


2 00 


126 


5 " 


8 30 


4 


2 00 


508 


5 " 


33 90 


18 


1 00 






18 00 


8 


1 00 






8 00 



WHEN PROVEN. 



May 15, 1867. 

" 17, " 

" 18, " 

" 20, " 

" 21, " 

u 21, " 

" 23, " 

" 23, " 

u 97 " 

June 3, " 

" 3, " 



Official. 

H. a. FLAGa, 

P. a of the Court. 



JOSHUA B. FRIERSON, 

President of the Court. 



lieport of the Special Committee of the House of Representatives, 
concurred in hy the House, on the 29th day of January, 1867, 
and transmitted to the Senate, accompanying the Hesolutiotis of 
Hnpeachment, and the Articles of Impeachment, in House Mes- 
sage No. 60, February Uth, 1867. 

"The Special Committee, to whom was referred the duty of 
inquiring into, and investigating the official misconduct of Hon.. 
Thomas N, Frazier, Judge of the Criminal Court of the County 
of Davidson, beg leave to submit the following Report: 

"That, on the twenty-fourth day of July, 1866, the House of 
Representatives of the General Assembly of the State of Tennes- 
see, in extraordinary session assembled, at Nashville, the Capital 
of the State, did adopt the following duly attested Preamble and' 
Resolutions: 

"Whereas, The House of Representatives, met in extra- 
Ordinary session, by Proclamation of Grovernor W. G. Brownlow, 
on the 11th of July, passed the following Resolution, to-wit: 

HOUSE RESOLUTION NO. 1. 

'^Besolved, That the Speaker be directed to issue warran.ts of 
■ arrest for Messrs. Martin, Representative from Jackson County; 
Brittle, Representative from Smith; Marable, Representative 
from Benton and Humphreys; Porter, Representative from 
Henry; Dimnaway, Representative from Bedford; Foster, Rep- 
resentative from Hamilton; and Williams, Representative from 
Carter, refractory members of this House; that Captain Heydt, 
as Sergeant-at-Arms, be authorized to employ such assistance as 
may be necessary to carry into effect the order of this Body; and 
that said Capt, Heydt, as Sergeant-at-Arms,. bring said members 
before this House, to answer for their conduct and contempt of 
this House;" and 

"^Whereas, Capt. Heydt, as Special Sergeant-at-Arms, through 
persons properly authorized, did proceed and arrest P. Williams, 
Represeniative from Carter County, in obedience to said order of 
said House of Representatives; and 

"Whereas, A writ of habeas corpus was sued out before his 
Honor Judge Frazier, of the Criminal Court of Davidson Couutyj 
9 



and served upon Capt, Heydt, commanding him to appear before 
His Honor, with the body of P. Williams, Eepresentative from 
Carter County; and 

" Whereas, The House of Representatives made the following 
return to said writ, to- wit: 

HOUSE RESOLUTION NO. 4. 

^'Be it resolved by the House of Reiwesentatives, That we do 
respectfully, but most emphatically, deny the jurisdiction of said 
Criminal Court in the premises, and the authority of said Court 
to interfere in the discipline and organization of the House of 
Eepresentatives, and direct Capt. Heydt, as Sergeant-at-Arms, to 
tender this Eesolution to His Honor, Judge Frazier, as his return 
to said writ, and furthermore, that Capt. Heydt be directed to 
continue under arrest all members detained by hira under said 
Eesolution, until otherwise ordered by this House;" and 

^^ Whereas, Judge T. N. Frazier, of said Criminal Court of 
Davidson County, issued an attachment for said Capt. Heydt, 
Sergeant-at-Arms, and an order of release for said P. Williams, 
member of the House of Eepresentatives, held in custody by 
order of this House; and 

^'■Whereas, The Sheriff of Davidson County, and 'posse comi- 
tatus, in obedience to the order of Judge T. N. Frazier, did for- 
cibly break into, with violence, the Capitol, and did enter the 
Hall of the House of Eepresentatives, and did take therefrom, 
said P. Williams and said Heydt; and said Judge T. IC. Frazier, 
did punish, by tine, said Heydt, Sergeant-at-Arms, for obedience 
to an order of this Body; and did release said Williams from cus- 
tody and control of this House; Therefore, be it 

'^liesolved hy the House of Representatives, That the conduct of 
the said Judge T. N. Frazier, is a gross and unjustifiable viola- 
tion of the high and indisputable privileges of this House, and 
merits prompt and decisive means of punishment. 

"Resolved, 2d. That the Speaker be directed to serve proper 
notice upon the said Judge T. N. Frazier, and said Sheriff of 
Davidson County, and said posse comitatus, to appear before this 
body, on the second Monday of November, 1866, when and where, 
to answer such charges as may be brought against them, at said 
time. 



"liesolved, 3d, That in case of failure, or refusal of the Speaker 
of this House of Representatives, to perform the duty required of 
him, by the two Resolutions, within ten days from and after the 
passage of these Resolutions, the Sergeant-at-Arms, Capt. Heydt, 
be, and is hereby, authorized to serve said notice. 

JOHN NORMAN, 

Speaker pro tern, of the House of Representatives. 
Adopted July 24, 18GG. 

I, Andrew J. Fletcher, Secretary of State of the State of 
Tennessee, do certify, that the foregoing is a copy of a Resolution 
of the Lower House of the General Assembly of Tennessee, 
adopted July 24, 1866, the original of which is now on file in 
my office. 

In testimony whei'eof, I have hereunto subscribed my official sig- 
nature, and by order of the Governor, affixed the Great 
[Seal.] Seal of the State of Tennessee, at the Department, in the 
City of Nashville, this I7th day of August, 1866. 

A. J. FLETCHFR, 

Secretary of State. 

"The fticts being personally known to members of the House; 
and the official misdemeanors and high crimes, and breaches of 
the privileges of the House, being committed, while the House of 
Representatives, aforesaid, was in session, by the said Thomas N. 
Frazier, Judge, as aforesaid, as recited in the said Preamble and 
Resolutions; therefore, your Committee unanimously report and 
recommend its adoption, as a measure demanded by public just- 
ice, and the rights and privileges of the law making power, the 
following Resolutions: 

''Besolved by the House of Representatives, That Thomas N. 
Frazier, Judge of the Criminal Court of the County of Davidson, 
and State of Tennessee, be, and he is, hereby, impeached of high 
misdemeanors in office, requiring his disqualification. 

'^Resolved, That the Honorable Senate be informed, that the 
House has impeached Thomas N. Frazier, Judge of the Criminal 
Court of Davidson County, for high misdemeanors in office, re- 
quiring his disqualification; and will, in due time, by its Mana- 
ge rs, present special Articles of Imjoeachment, and demand that 



the Senate take order for the apprehension and trial of the person 
above named, to answer said Impeachment. 

^^ Resolved, That this House do proceed to elect three of its mem- 
bers, to prosecute said Impeachment, as provided in, and required 
by, the Constitution of the State of Tennessee." 

Official: H. G. FLAGG, 

P. C. of the Court. 



LIST OF ATTORNEYS 



Counsel for the State: 

Hon. JOHN TRIMBLE, 
'' HORACE MAYNARD, 
" N. A. PATTERSON, 
J. J. NOAH, Esq. 



Counsel for the Defense: 

Hon. ED. H. EWING, 

ED. H. EAST, Esq., 
" JOHN S. BRIEN, 
JOHN C. GAUT, Esq. 

Official: H. G. FLAGG, 

P. C. of the Court. 



J\. , 



CONTAINING THE 



EVIDENCE AND ARGUMENT OF COUNSEL 



IN THE CASE OP 



The People if Tennessee VS. Thomas N. Frazier, Judge, &c. 

IMPEACHEI). 



TRIAL OF THOS. I. FRAZIER, 

Judge of the Criminal Court of Davidson and Rutherford Counties, 

BY THE 

se;is3"^te of ten'nessee. 

May 6, 1867, 

FOE VIOLATION OF THE PEIVILEGES OF THE HOUSE OF 

EEPEESENTATIVES OF TENNESSEE. 



MONDAY, MAY 6TH, 1867. 

The Senate met according to appointment 
May 6th, in its Chamber. President Friei-son 
called the body to order, and the following 
Senators answered to their names: 

Bosson, Carrigan, Gate, Frazier, Hall, John- 
son, Keith, McElwee, McKinny, Nelson, Patter- 
son, Powell, Senter, Spence, Smith, Tliompson 
and President J. B. Frierson— IT. 

The following articles of impeachment were 
thereupon read : 

Articles of Impeachment, exhibited by the 
House of Kepi esvntatives of the State oi Ten- 
nessee, for themselves, and on behalf of all 
the people of sail State, agaii-.st Thomas N. 
Frazier, Judge of the Criminal Court of the 
county of Davidson, in said State o£ Tennes- 
see, in raaiutainance of their impeachment 
heretofore preferred against him for high 
crimes and misdemeanors, requiring his dis- 
quaiiflc.ttion: 

ARTICLE I. That the said Thomas N. Frazier 
•was, prior to the fourth day ot July, A. D., 
18f)6, and ever since has been. and still is,Judge 
of the Criminal Court in and lor the county ot 
Davidson, and Stale of Tennessee. 

That tiie General Assembly of the State of 
Tennes.see did, on the 4th day of July, A. D., 
1866, meet in extraordinary sess-ion, pursuant 
to the proclamation oi His ExCi-dlcncy, Vv illiam 
G. Brownlow, Governor ot the State of'fen- 
ntssee,ot date of June 19, 1S66, at the State 
House at Nashville, the capital of said State, 
which extraordinary session was called in pur- 
suance of the p:ovisious of the Constitution of 
the ^tate, for the purpose of ratifying or reject- 
ing a proposed amenament of the Constitution 
of the United States, Mhich proposition wiS, by 
concurrent resolution of the Congress ot the 
United States, at the flr.>t session of tlie 39 h 
Congress, submitted to the States of the Union 
for tlieir con-ideration as aforesaid. 
That the House of Representatives did meet 



on said 4^h day of July, 1866, in their Hall, in-^ 
pursuance of the aloresaid proclamation, and 
was then and there called to oriier by the Hon. 
William Heiskeli, the speaker thereof That 
on the 5th day of July, 1866, the siiitl House of 
Kei)resentativis did meet, and the roll being 
called, forty-niae members answered to their 
nain-s. 

Tnat the House met from day to day, without 
transacting other business, except to effect a, 
quorum todo business, when, on the eleventh 
day ot July, 18i6, the following resolution was 
then and there adopted: 

"Resolved, That the Speaker be directed to is- 
sue warrants of arrest for Messrs. Martin, Kep- 
resentitive from Jackson county; Butler, Kep- 
resentative from Smitli: Marable, Representa- 
tive from Benton and Humphreys; Porter, 
Kepre-entative from Henry; Dunnaway, Kep- 
resentative from Bedford; Foster, Keprcseuta- 
tive from Hamilton, and Williams, Itepresen- 
tative from Carter, refractory members of this 
House; that Lap,tain Heydt, as tiergeant-at- 
Arcns, be authorized to employ such assistance 
as may be necessarj' to carry into efl'ect the or- 
der of this body, and that said (Japtain Heydt, 
as Sergeant-at- Arms, bring said members be 
fore this House, to answer for their conduct 
aud contempt of this House." 

That said resolution and proceedings there- 
under, as loutemplated thereby, were based 
upon and derived their am hority from Sectioui 
11th of the Constitution of the State of Tennes- 
see, as follows: 

"Sec. 11. 1 he Senate and House of Repre- 
sentatives, when assembled, sh ill each choose a 
Speaker and its otner otlicers, be judges of the 
qualiflcations and elections of its members, aud 
i^et upon its own adjournments from day today. 
Two-tiiirds of ea< h Hou.se shall constitute a 
quorum to do liusiness; but a smaller numbci-i 
may adjourn from day today, and may be au 
tuorized by law to compel the attendance of 
ab.-ent members." 

That it is furthermore provided, in sec. 12 
of the Constitution, that each House of the Gen- 
eral Assembly may determine the rules of its. 



proceedings, pTinish its members for disorderly 
oehavior. and shall have other powers neces- 
sary lor a branch of the Legislature of a Tree 

State. 
That the House of Representatives did, du- 

rina: it^ session, to wit: the day of , 1865, 

deteimine the rules oiits proceedings by adopt- 
ing rules for its gov' rnmeut. and did provide a 
rule, known as ruleNo.l4, as follows: 

"Rule 14. Ns member shall absent him-elf 
from the service of the House without leave 
first obtained ; :ind in case a less number than a 
quorum oi the House shall convene, they are 
hereby authorized to send the Doorkeeper, or 
any other p'-rson or persons, for any or all ab- 
sent mcmbeis, as the majority of such members 
present shall agree, at the expense of su' h 
members respectively, unUss such excuse for 
non-attendance shall ''C made as the House, 
■when a quorum is convened, shall judge suffi- 
cient." 

That the Hon. Plessant Williams and the 
Hon. A.J.Martin were members of the House j 
of Representatives of the Ceneral As-emb y 
of the State of Tennessee, having 
beeu i'ul}' qualilied as such, and sworn in un 
der and by tbe oath required by the constitution 
of the State — the Hon Pleasant Williams re|)- 
i-csenting the county of Carter, and the Hon. 
A. J. Martin repiesenting the county ol Ja k- 

: son. And said Hon. t'le^isant Williams and Hon 
A. J. Martin, being such meuibers of the said 

. House of Representatives, and duty qualifled as 
aforisaid, were subject to all rules, regulations 
and orders of sail! Hoi'se, in iis autuoriiy to 
com el thtir attendance, and to secure the 
.{iri sence of a quoruui of its members. And 
said Williams au'i Martin, members of the 
Hoaseas aforesaid, were, by exi)riiss rule of 
the said House, prevented and estopped from 
absent ng thi mselves from the service of the 
said House without lea,\e first obtained; audit 
appearing by the aforesaid resolution, 
of the House, adopted on the nth of 
.'Uly, 1866, thut the said Williams and 
Martin were absenting themselves from 

; the tervice of the said House, without leave 
first obtained, and were refractory members 

• there'Sf, this in defiance of the rules of the 
Suid House, and iu conflict with their official 
oaths as membt-rs of the House of Representa- 
tives of the General Assembly ot the State of 
Tennessee. 

That said Captain Heydt, as Sergeant-at- 
Arms, of the said House, undtr its resolution 

. af' res a id, ef the llih of July, 1S66, and actii g 
under the direction and authority ot the sai<i 
House, (lid proceed to compel the attendance of 

■ the said Wi.liams and Mai tin , refractory mem- 
bers as aforesaid, by arresting them, the said 
Williams and Martin, and did brtng them, the 

r said Williams and Martin, to ihe Jlall of the 
House of Representatives, at the (Capitol, at 
Nashville, on or about ihe 16th day of July, 
1866, where, in obedience to ■■rdn's from the 

; said l-iouse, he. the snid Heydt, Sergeaut-at- 
Arms, detained them, the said Williams and 
Mariin, in custody, as he was in duty bound to 
do, as an officer of the said House. 

That on or about the 17th day of July, 1866, 
the said Thomas N. Frazier, Judge of ihi' said 
Criminal Court, of Davidson county, as alori - 
said, well knowing that the said flea- ant Wil- 
liams was a member of the House of Represen 
tatives, of the General Assembly of tlio ^tate 

■ of Tei.ne-:see, duly qualifleil as such; and well 
knowing that he, the said Williams, was held 
in custolvbythe Sergeant-at-Arms, Captain 
William ileydt, under the resolution a d au- 
thority ot the said House, to compel the atten- 

• dance of said Wi hams, as an ahseiitintr and 
reiractory member of said House; and well 
kiowiiig the privileges of the said House and 
of i)arliamentarj' boilies; and well knowing, as 
he was bound to know, as a Judge, the laws of 



the land, and the authority of the Constitution 
of the State of Tennessee, in that be- 
half expressly made; and well knowing 
that the said House of Kepresentatives had 
made aijd adopteil rules for its goveriiment; 
and well knowi g the right of a Legislative 
Assembly to have and couipid the attendance 
of all its members, excei>t those absent on 
leave, and to enf >rce it, it necessary, as an un- 
doubted and important privilege; and well 
knowing that saul William Heviit, as aforrsaid, 
was an acting serg"int-at-Arms of said House, 
and was under orders fr')m said House, and 
under its direction holding saiil Pleasant Wil- 
liams, a member of tns House as a'ori'said, ia 
custody, as a refractory and absent member, 
in the hall ot the said House, he. the said 
Thomas >J. Frazier, Judge as aforesaid, did, 
corrapt;ly, wiliuUv, maliciously, feloniously, \ 
and with the intent of committing a brea<:h of 
the privileges of the said Housh, and with the 
intent, corruptly, wi fudy, mali;:iousiy and 
feloniously, of de:cating the presence oi a quo- 
rum of said Hou&e, and to disrupt arol break 
up the ."iauie, issue a writ of habeas corpus, and 
cause the same to be seiwed upon the said 
Heyflt, Sergta>it-at Arms as a ore- aid, come 
manding him, the said Heyit, to appear beiore 
him, the said Frazier. Judge as aforesa d with 
the ho ly of the said Pleasant WiUiim s, mem- 
ber of the House of Representatives, Iron the 
county of Carter, so detained there and tlien, 
by said Heydt, under the orders of the said 
Housi', as aforesaid. 

Tnat said House of Representatives in con- 
sideration of sal' i vtrit of habeiis corpus,, did, 
on or aaout the nth day of fuly, A. D., 1866 
adopt the following resolut on: 

Be it resolved by the House of Representatives, 
That we do rospi ctfuUy, but most cinphat^ically 
deny the jurisoiction of said Criminal Courc ia 
the premises, and the authority of said C'urt to 
interfere in .he discipline an ". organization of 
the House of Repr< sentatives, and direct Captaia 
Heyilt. as Sergeant-at-Arms, in toudt^r this 
resolution to his Honor Judg ■ Frazier, as his 
return to said writ; and furiherraoi i', that Cap- 
tain Heydt be directed to coniiiue und- r arrest 
all aiembers detaimd by him, under such reso- 
lution, until otherwise ordered by this House. 
That Captain Heydt, Sergeant-at . rms, as 
aforesaid, in obedience to said resolution, did 
appear in person una by counsel, before the 
said Frazier, Juilge, as aforesaid, on the due re- 
turn of said writ of haoeas corpus, and with re- 
spect and c jurt' sy, did mate remin tlureto, 
according to the said resolution of the said 
House; that said Williams was det dncd by him, 
under authority of the said House, as its duly 
authorized officer: and that the said iJous*- did 
respectfully, but most emptiatically d< ny the 
jurisoiction of the said trimiual Court iu the 
premises, and the authority of said Court to in- 
terlVre in the discipine and organization of the 
House of Representatives, infoimaig said Fra- 
zier, Judge, as aloresaid, th.t he, th said 8er- 
ge-4nt-at-Arms, Heydt, was directed to tender 
sail! resolution as a return to Si.id writ of ha- 
beas corpus, aud that he, the said Sergeant-at- 
.\rms, Heydt, could not producf the body of 
said Pleasant ^^ i Hams, because by said resolu- 
tion ofsa d louse he was directed and bound to 
continue under arrest all refractory members 
detained by him, until otherwise ordered by 
said House. 

That said Frazier, Judge as aforesaid, disre- 
garding all these facts, did refuse to accept the 
s:jid return ot said Uevdt, to said writ, aud did 
corruptly, wilfully and maliciously, and felo- 
niously issue an attaciimeut auaiust said 
Heydt, Sergeant-at-Arms, asaf iresaid, and or- 
der the Sherifl' of the county of Davidson to 
elease said Williams from the lawiiil custody 
of ihe House of Representiuives. All this at 
Sashville, the Capiialof the State of Tennessee, 



on or about the 17th day of July. A. D., 1866, in 
contempt of the power of the House of Repre- 
sentatives, over its own memtiers: obstructing 
tlie law-nialiing power of the Government, tie 
leatinc the exercise of a co-ordinate and sov- 
erei/n branch of the Government of the St ite 
and in gro'S and unjustiflable violation of the 
high and indisputable i)rivileges of the House 
of Representatives, one of the branches ot the 
J^egislative Assembly of the State of Tennes- 
see ; and thereby the said Thomas N. Frazier 
Judge of the Criminal Court of Davidson coun- 
ty, was guilty of high misdemeanor inliisoflice 
of Judgf^ aforesaid. 

Article 2. That referring to the recital^ and 
fac t Stat, d in article first of this Impeachment, 
and expressly making each .-nd every state- 
ment therein wriitL-n and d' faded, part ot this 
aitiile i-econd, as preliminary and auxiliary 
thereto, he, the said Thomas N Fruzier, Juil e 
of tiie Criminal Court, of tht county of David- 
son, and estate of Tenuessce, corruptly, wil- 
fully, maliciously, feloniously, and by the ex- 
ercise of illej^al power ami auilior'ty, and an 
assumption of unpreceden'ed iudicial func- 
tions, did cau^e the release of rieasunt Wil- 
liaiis, a member o: the House of Represent.i- 
tive?, of the General xssembly, of the State of 
Tennessee, from the county < f Carter, who was 
held in custody by the, authority of the said 
House, as a rtfractory and absenting member, 
as detailed more fuly in article fiist of this 
Impeach nient, and did authorize and empowtr 
the Sheriff of the county of Davidson, to ar- 
rest aLd bring before him the said Frazii r, 
Judge as aforesaid, the said Captain AViiliam 
Heydt, Sergeact-at Arms, of the said House ol 
Representatives, upon acharsre of contempt of 
the court, of him, the said Fnizier, Judge as 
aforesaid; he, the said Crazier, Judge as afore- 
said, well knowingthat said Heydt was a Ser- 
geant-at-Arms as aforesaid, and bound to obey 
the orders of the said House ot Representa- 
tives, as its officer; and well knowing that the 
said House, by its resolution, as aetaib d in 
article flrstof this la p* achment. hud directed 
said Heydr, to make return respectfully that the 
jurisdiction of his sai'i Courtwas mostemphat- 
ically denied, aed had lurther ordered and di 
reeled said Heydt, Sergeiint-at-Arms, t) con- 
tinue uniler arrest all refractory members of 
said H use, detained by him, until further or- 
ders; and he, the said Frazier, Judge as Hfore- 
said, well knowing the power and privileges 
of the said House of Itepie-ent. fives to com- 
pel the attendance of absent members, and w il 
k' owing that said House had exercised said 
power, by directina- the Speaker thereof t > 
issue his warrant lor the arrestof abi-entmem- 
bers; nd well knowing that the said Heydt, as 
Serjeant-at-Arms, h.id ar ested said Williams, 
a )-efractory member of said House, and 
brought him before the said House; and well 
known. g tnat said arre-ted member, was under 
the junsdictiuii of the House, and whi e in 
such condition, no other depaitmeut of the 
Goveinmeni, or officer thereo', couldrightfuUy 
or legally claim or take jurisdiction of him, the 
saiii Wdliams ; and well liuowing that the pri . i- 
leges of the House of Kepresentatives, as laid 
down by common parliamentary law, did attach 
toilie ufficersof the Legislative Assembly, a? 
W' 1 as to the members, and that the said Hevdt, 
as Sergeant-ai Arms ot said House, was privi- 
leged with the members, from being arretted 
or withdrawn by legal process, rom his duties 
RS an officer of s dd House; he, the said Frazier, 
Judge, as aforesaid, did wiifuliy and mnliciuii:- 
ly ai.d corruptly eause the said Heydt, Serge mt- 
at-Arms, as aforesaid (weL knowing that he, 
the Said Heydt, was a -tergeant-at- rm> of the 
said House), to be arresied and brought b fore 
him, ti e said Frazier, Judge, as afoiesaid. by 
the Sheriff of the sai ' county of Davidson, and 
did adjudge the said Heydt guilty, and did pun- 



ish the .«aid Heydt, Scrgeant-at-Arms, as afore- 
said, for an alleged contempt of the Court, of 
hivn, the said Frazier, Judge, as aforesaid, in 
making the return to said writ of habeas cor- 
pus, mentioned in Article first of this irapeach- 
mt nt, in the manner directed by said House, by 
inflicting upon the said Heydt, Sergeant at - 
Arms, as aiO)'esald, a tine often doUais, mor.-or 
less, and to be committed until paid. All this 
at fsashville, the Capital of the Stale of Tennes- 
see, on or about the seventeenth dav of July, A. 
D. 1866, in contempt of the powet o"f the House 
of Representatives over its own members and 
officers, obstructing the law-maki. g power of 
the government, defeating the i xercise of a co- 
ordinate and sovereign branch of the Govern- 
ment of the -tate, ai din gross and unjustifiable 
violation ( f the privileges, high and indisputa- 
ble ol the Hviuse of Hepreseutatives, one of the 
branches of the Legiblaiive Assembly of the 
State of Tennessee; and thereby the saitl Thom- 
as N. Frazier. Judge of the Criminal Court of 
Davidson county, was guilty of high crime and 
misdemeanor, in his office of Judge, as afore- 
said. 

And the said House of Representatives, sav- 
ing and reserving to themselves, the liberty 
of exhibiting at any time hereafter, any further 
Articles, or other accusation or Impeachment 
against 'ihomas N. Crazier, .aidge as aforesaid, 
and als ' of replying to his answer hereto, and 
of oflering proof to all and every one of the 
aforesaid Article* of Impeachment or accusa- 
tion, which shall be exhibited to them, as the 
case may require, to demand that the said 
Thomas ^^ . Jj'razier Jurlge as aforesaid may be 
Ijut t . answer the misdemeanor herein charged, 
and that such proceedings, examinations, tri- 
als and judgments, lUiiy be thereupon had and 
given, as are agreeable to justice. 

Attorney Genera'. 
Wm. J Smith, Rep of H;a-deman county. 
W. DUGGAN, Rep of Sevier county. 
J. A, FusoN, Rep, of DeKalb county. 
Members of the House of Representatives, and 
Managci s on the part of the .same, to jjrosecute 
said Impeiichment. 

The foregoing are the Articles of Impeach- 
ment du y prepared hy the House of itepre- 
sentaiives of the State of Tennessee, against 
Thomas N. Frazier, Judge of the Criminal 

Court of Daviilson county, on the day of 

, A.D.,1867. 

J. S. MULLOY, 

Speater pro tem. of the House 

of Representatives. 

Communicated and filed in ihe Senate, in 
House Message No. 60, February 11, 1867. 

Hons. Horace Maynard, John Trimble and 
N. A. Patttrson, counsel employed by theisrose- 
cution, were in attendance For Judge Frazier, 
Hon.s. E. H. E wing, E. H. East, J. S. Bi ien, and 
John C. Gaut. Mr. Ewing stated to the court 
that, after considering the nature of the case, 
the gentlemen representing the defendant had 
prepared both an answerauda demurrer, and 
ashed leave to file their answer with the privi- 
lege to avail themselves also of the dtmurrer. 
Objection was raised by Mr. Trimble, who re- 
minded the court that the time intervening 
between the present session and the court's or- 
ganiz ition in March, had been granted Judge 
Frazier at his own request, that he might be 
ready with plea, answer or demurrer. Mr. 
Trimble understood a demurrer had been filed, 
hence, no witnesses for the prosecution had 
•yjcen suQimoned. Mr. East stated in 



reply, that he had prepared the print- 
ed defense and demurrer, but that neither 
had asyet been filed with the Clerk. On in- 
quiry, the Clerk announced that neither had 
been filed. Mr. Maynard understood defend- 
ant to sustain the relation of one who stood 
before the court without a defense. After some 
further discussion, interrupted by motions to 
adjourn, the court, on the n otion of Mr. 
Trimble, allowed the defense further time, 
namely till the hour of meeting this morning 
(9 o'clock), to fl1e their plea, answer or demur- 
rer. The court then adjourned. 



TUESDAY, MAY 7th, 1867. 
The Senate of Tennessee met at nine o'clock, 
A. M. Speaker Frierson in tlie chair. 

The roll was < ailed by the Clerk, and eighteen 
Senators were present. 

The journal was th(-n read and approved, 
when the following rules were read and unan- 
imously adopted : 

RCLES for the govern inent of the Court of Im- 
pe i< hment in the trial of Thos. 1<. Frazier, 
Judge. &c. 

Rule 1st. No one witness shall be examined 
by moie than one of the counsel on the 
part of the State and one on the part of the re- 
spondent. 

2d. Not more than two of the counsid on 
either side, shall speak on any collateral ques- 
tion before the con I't, such as upon the compe- 
tency or admi!>sil)ility of testimony. 

3d. All motions made liy counsel on either 
side shall be put in writing and entered of 
record. 

4tli. No argument upon any point before the 
court shall be made bj' any member, but he 
may, when called upon for a decision, state his 
reasons for the opinion, or deliver them in 
writing. 

5th. Any counsel or manager deviating in 
argument from the point before the court may 
be called to order by the President or a .y mem- 
ber of the court. 

6th. Points of order may be decided by the 
President, or if the President so desires, he 
may submit such points to the court. 

7th. Any member or memLers of the court 
may at the Close of the trial, have his or their 
reasons spread upon the record for his ^or i lieir 
final vote. 

The fdUowing are the names ot the counsel 
engaged in the case : 

For the State.— W. J. Smith, Col. Wilson Dug- 
gan, Dr. J. A. Fuson, managers appointed by 
the lower branch of the General Assembly to 
conduct the prosecution. The managers are 
assisted by the Hon. John Trimble, Hon. Hor- 
ace Maynard, Judge N. A. Patterson and J. J. 
Noah, Esq. 

Ibr the Jiesponde7it —Judge John S Brien, 
Judge E. II. Ewing, Judge J. C. Gaut and Hon. 
Edward H. E«st. 

After the rules given above had been adopt- 
ed, the President stated that these rules would 
govern the action of the court so far as they 
were applicable. 

On motion of Senator Senter, one hundred 
copies of the rules were ordered to be printed lor 
the use of the court. 



Senator Senter then stated that he hoped a 
moti'-n would be carried rescinding the reso- 
lution by which the Senate ordered the sessions 
of the court to be p ivate. He thought there 
was an air of privacy about tiiis ma ter that he 
did not consider as in keeping with our insti- 
tutions and government 

Senator Bosson then offered the following 
resolution, in lieu, whicli was a-lopted: 

Hesolved. That resolution No 4, passed by this 
Court ol Impeachment, be, and it is hereby re- 
scinded fKesolutiori No. 4 here referred to, 
permitted only the managers on the part of the 
State, counsel, reporters lor the urtss, ladies 
:ind invited gucat-, to be present in the .-enate 
Chamljei. Senator Bo-son's re-olution having 
been adopted, the Senate Chamber is now open 
to the public! 

Representative W. J. Smith, one of the mana- 
gers for the State, then presented the following 
motion : 
Before the Senate of the State of Tennessee, 

sitting as a High Court of Impeachment in 

the matter of Hon. Thomas N. t razier, Judge 

etc., impeached. 

And now come the managers on the part of 
the Hou?e of Rei)resentdtivis, to conduce the 
impeachment of Thomas N. Frazier, Judge of 
the Criminal Court of the county of Uavuls n. 
and sav: 'Ihat they object to the sitting as one 
of this Court of Impeachment, ol the Hon. B. 
Frazier, Senator from the countiisoi Knox ai d 
Koaue, and say that the Hon. B. Frazier, Sen- 
ator as afore-aicl, is incompetent to sit as one 
of the aforesaid judges for the reason that he, 
tlie said Hon. B. Frazier aforesaid, is the 
brother of the Hon. Thomas M. Frazier. the 
judge here impeached and brought to trial, 
whereof they a e ready to prove. 

Thereloie the said managers demand thot 
the said Hon. B. Frazier, Senator for Knox and 
Roane couniies as aforesaid, be exclndeil from 
this court, as right, justice, conscience, equity 
and the laws of bias require 

Senator Bosson here said that he did not see 
how a member of this body, who had properly 
been sworn in, could be disqualified from sit- 
ting in the court 

Mr. Trimble suggested to Senator Bosson 
that the counsel would address tiie court on 
tliis question. 

Judge Jno. S. Brien, on the part of the de- 
fense, then commenced the argument. As a 
rather lengthy discussion followed, we give 
below a tolerably full report of the arguments. 

Judge Brien said : 

Mr. Speake •, I do not very well understand 
how, under the custom of the State of Tennes- 
see, a member of the Senate can be excluded, 
unless you are governed hy tlie same rules as 
those regulating the exelusion of a Senator 
from participating in lesislation by a two- 
thirds vote. It is provided that the H')use of 
Representatives shall have the sole power of 
impeachment, and the impeached party shall 
be tried iiy the Senate. No' person is to be con- 
victed without the confTirreuceof two-thirds of 
the >enators swor.i to try the person impeached. 
The House of Representatives is to eiect from 
their boity three merab>rs, who.^e duty it shall 
be to prosecute the i upeachnjent; and the im- 
peachment trial is not to be maiie until after 
the Hi'use of Rei resentatives has adjourned 
«me die, when the Senate shall proceed 
to such impeachment. Wlio is the 
Senate? Each member of the Senate. How 



are wc to exclude a member ofthe Senate from 
sitting on a trial of impeachment? Not be- 
cause he may be related to the iu-ipe relied par- 
ty ; not becaii.se he may have tornied or ex- 
pre-se;l au opinion in rejjard to the case. The 
rulesapplicablcto the disqualillcationol' Judges 
cenainly do cot apply to Senators. A .Iiiugt; 
sha'l not sit on account of relationship to tue 
parties.iir on account iif having an interest in t!ie 
suit. That rule, I a|iprehead, dm s cot apply to 
thi- Senate, becauje if you adopt the mi that 
disqualilies because of the intere t t ken by 
the Senator in the case, or because of relation- 
ship, then you must go a step further. Then 
as a matter course, this would fall on every Sen 
a or who had formed or expressed an opiuion 
as to the guilt or innocence of the party. 1 
apprehend this rule does not ai.fily at all A 
S nator who has i een duly elected and qualified 
as such, to >-it on an impeachment trial, is qual- 
fied to determine tue question that ari es during 
the impeachment. Ko exieptions are made in 
the constitution. organizing aCoui toi Impeach- 
ment in cases of this sort. I make this state- 
ment of fact^ as I understand the law to be. 
and not par icularly as an objection If the 
Senate chooS' s to exclude any of its members 
from participaiion in this trial, it must ' e upon 
some other grou- d, in my opinion, than that 
tney may bj lelated to the party, or may have 
a personal interest in the question pending be- 
fore the court. 

There must be some offense that requires the 
Senate to expel a member, and if any Senator 
is exoluilcd rom this court, it will amount to 
an expulsion. This is the Senate until the next 
eee.tion in the State of Tennessee. Suppose 
this S nate was now to exclude o e of it^ mem- 
bers on account of relationship to the par y 
upon trial, what would be the effect of it? 
Would he beany longer a Senator? Is there 
any prejedeur in the wor d. where, for a par- 
ticular purpose a Senator is disqualified from 
voting, and yet qualilied to do everything else 
except that jjarticular thing? i apprehend 
not. 

Jadge N. A. Patterson then replied as one of 
the counsel on the part of the State. He spoke 
in substance as follows: 

I think that there are some doubts about this 
que tion. lu the first place, in the absence of 
any particular authority on the question, I re- 
mark that it is a subjeet of extreme delicacy 
on the part of a Senator to sit in a case where 
he would necessarily have a peculiar interest. 
He ought to be excused, and in that connection 
I may remark that, I understand that one of 
the mem hers ot this houoratile body asked to 
be excused from being sworn and sitting upon 
the ease, on the ground ttiat he was simply 
counsel in the case in the court below. If that 
was a -utlicient reason, ci rt.iinly near relation- 
ship ought 10 lie of more controlling force. Hut 
if the court pleas", there can be no doubt tint 
this is a court; and not only so, but a high 
c 'urt — perhaps the very highest tliat can lie 
or:ianize<l in the state of Tennessee. I will as- 
sert, the hiiihest, for it i- composed f the lead- 
ing tirancu of the highest department of the 
St tte Government; tnd certainly, the princi 
pies that would upply to an inf-rior court must 
necessarily apply 10 this court; that no judte 
or Chancellor shall be compe'ent where he is 
le'ated to eiiher party, by affinity or consan - 
guiiiity, wi;h'u the sixth degiee. So tar as the 
question is concerned, as to the authority of this 
coiirj; to ac. upon the question, there is nodoubt 
about that, i'he court is niw organized, but 
not fully, in one respect, i here is certain.yuo 
reason to exclude a p iuciple of law so well 
foimded in common sense and justice as the one 
here as-erted. The reason of the law is too ob- 
vi us to require comment, that, when connect- 
ed by close t es of relationship, the partly 



should be excluded from sitting as a member of 
a court. Certainly it is applicable in all the in- 
ferior courts. Is ilierc less ground to question, 
there thaa in a Chancery i.,ourt. or in any court 
of conn mon law? Kvery principle that applies 
to the lower courts applies more strictly here. 
To say that to < xclude a .senator from this 
court, would be to expel him amounts to 
nothing. The question is, is he qualified 
11 s a judge? If this principle of l:iw iioes not 
aiiply, then you must exc iide every principle. 
You rejected all those princlpks comprehend- 
ed in pailiamentary usage, and in comm n law 
or any other law, and sav that this court is 
without rule, and that no ruies shall apply to 
t le sessions of the court, because it is not a 
court similar to other courts. It is a hghor 
court; its duty is more important and more in- 
teresting to the whole country, to the respond- 
ent; and US a matter of course the piinciples 
that govern inferior courts will upply here so 
far iiS the qualilic tions of members of this 
court are concerned. Inde;d, ihey should be 
construed with greater strictness if possible, 
than in the inferior courts, and should not be 
excluded The Question is so clear th, it it ap- 
pears to me ttiere is no need of discussing it 
lurther. 

Judge J. C. Gaut, for the defense, continued 
the argument. He said : 

I don't know that there is anything to be said 
in addition to what Judge Uiiei has 
stated i had not myself supposed that 
this court would be confined to the strict 
tecrmical rules of the <riuiinal practice of this 
State, as other courts are, because this is a court 
independent of the statute liws of this State; a 
court created by the funilameutal law, by the 
corstitution I he constitution itself makes the 
Sena'e a Court of impeachu ent, and this court 
I suppose will not he sirictly contiiied to the 
piaclice of ciiminal courts in this State. All 
the members of the Senate that are sworn in 
become a part of the court, fhe question of 
previously formed opinions would certainly 
not come into ihis Court, lor it might exclude 
the whole court, and thus prevent an impeach- 
ment You cannot str'ctly apply the statute 
law of the State and the rules that .govern other 
courts, to this court, because this court derives 
its sole power from the constitution, and not 
from the statutes. Therefore, the constitution 
having made the Senate a Court of Impeach- 
ment, it made all lis menibers who were sworn, 
members ot that court, aul technical 
rules of relation-hip or int' rest, or ot 
previous y formed ofiinions, do not apply 
to this eourt. uiherwise the court miarht de- 
feat itself. The members of this court may 
have formed an opinion upon this question In 
that care a Judge could not sit lua criminal 
case, but 1 apprehend that tlii-i principle would 
not apply to th^s court. We have no choice 
about this matter, and ouly Wish to do light so 
far as possible, in regar.l to th*^ questions that 
arise. [Mr. Trimble here said— I would sug- 
gest to the counsel for cue respondent that we 
do not i-e y upon these as technical rules, but 
appeal to them as a quest ou of justice, of rea- 
son and of right.] 

The Judge continued— Then I will say n th- 
ing farther upon th.it point. I will only make 
this suggestion to the members oi the court, 
that without the constitution no Senat ir could 
be here. If Senator Frazier is a constituent 
partof the court er« cted by thefund i mental law 
of the land, I do not see any legal way in which 
he can be excluded Ir m this court. Having 
been sworn in, he must ee a part of the co rt. 
The con-titution makes him a part of thecjurt, 
particularly when sworn in. This being the 
case, 1 don't see how he can be excluded. 

Mr. Trimble then made an argument on the 
part of the iiate. He said: 



I did not, know until a few moments fince, 
that Senator Frazier had been sworn in. I was 
surprisea when i h^ar^ltha'. he bad been sworn 
in. The que-t'on wliich we now submit to the 
court, and whirh it is lor tlie court ta decide, is 
whet ner u is competent fi;r fe ator Frazicr, 
the biotlierot the im(jeacned part , to sit on 
tiie tr al ana vo.e in this case. Thu constitu- 
tion pr >videsfor a Court of Impeachment, aud 
prescribes tliep'irposei fo • which that court 
shall sir. We nave iio Code upon the subject 
pi-, sc-ribing rules und regu ations or modes of 
proceeiiiug for a Court of Impeachment, but as 
I apprenend, wlieu thatcinirt is organized as a 
Cjurt oi Inipi'achraent. for the attainment of 
the great eiMs of justice, it is immediately 
clothid, under the oomm 'U law of the land, 
with all thi; iiov\ ers that are necessary to enable 
it t ' accomiilish the end lor which it was a- 
sembled. You are g')verned bv the lommon 
law, by the law of rea-on; for the common law 
is the law of reason and n. ture and justice 
Under that la^ kuo^vn as the Amer- 
ican cum moil law, you are now 
siting io try this impt-achment. By 
what other lavv are you sitiina: here? I 
havfi just saw that there is no <'ode of laws 
pc escribed for this court. How shall you pre- 
serve silence, aud honor, and dignity in your 
cou't, if J ou do not conduct your court in ac- 
cordance with the common law of the landV 
Supposii, lor insiane, that this high Court of 
impeachment was invaded to-day by some one 
•who intended U> breali it up? Have you no 
law to preserve your orgiuization and to pun- 
ish t e party who atteiupts to break it up? By 
the force of y..urorg .uization you are clothed 
■with all the'power necessary to enable you to 
accomplish the object for vvhch you are as- 
seaibied, to acquit or to convict. [Judge Gaat 
here sdd: Allow me to make a suggestion. 
When we turn back to the com- 
mon law we find that relationship, or interest, 
prevents a juilge from trying a case. It is the 
statute that e.vcuide him, out in those States 
that have no statute such as we have, the judg- 
es are not prevented from trying such a case, 
as for instance, in Georgia ] 

Mr. Trimble continued: 

I hope this is the case no where but in Geor- 
gia. Suppose a judge had his own case pend- 
ing iu a court, would it not shock every one if 
he should sit in that case? Suppose his br'>'h- 
er's case was peintiug. or his father's, would it 
not shock tiie common sense of mankind aud 
oitr ge their feelings of lustice, if ne should 
try his fathet's or his brother's case? Nature 
forbids it; justice forbids it. Suupose such a 
judge were to offer to take his seat on the bench 
of tie Supreme Couit, would there be ])ovver 
to exclude him? Suppose that a Judge of the 
Supreme Court had ( ommitted murder, Avonld 
h'- >till lie entitled to h ^ seat? I apprehend not. 
When the Soiiatu i-. organized, the question is, 
whether any member uf Uie Senate is excluded 
by virtue of his part cular po.-ition from sitting 
in that body. '1 he Constitution says the Seu- 
ate shall sit as a Court ot Impeachment, and 
the gentlemen on i Ivi other side argue that that 
means that every member oftheSena'e must 
sii in that court, no niiitttr what may be the pe- 
culiar reiat on occupied in regard to the case. 
The Supreme Court consists oi three membei'S, 
but iti,-- siill a court if oT-e o: it- Judges is 
disqualified. Now. the Senator, brother to the 
party to be impe-che I by ttiis courn, does not 
challenge hini-elf. He is sworn i as a Judge. 
We object to his competency. The question is. 
whe'herihi- couit ins the power to decide 
-whether he is competent or not. Suppose that 
a Senator was arraigned iu th s Senate cham- 
ber, or in this Louit of Impeachment, for a 
gross violation of his duly, could he vote upon 
his own cast;? Suppose he were to claim the 



right to vote, what technical rule would ex- 
clude him? Would the Senate not have the 
power to declare that he could not act in that 
ca-e, and could not vote? Has the Senate not 
already a rule to that effect, that no member 
shall vote in a case where he is interested? 
That this court has the power to decide upon 
the competency of any particular Sen;itor to 
sit in this case, seems to me to be too plain a 
question t J be argued, as this court has uU the 
power necessary to enable it to accomplish the 
obiect for which it was assembled. This rule 
which would exclude the Senator is a rule of 
reason and of justice. Can gentlemen And iu 
the history of common law, any single solitary 
instance in which a near blood relation has sat 
to try a case pendiiiff in such a ci.url? I have 
said that the common law is the universal 
law of reason. It is lounded in nature and 
justice, and designed to accomplish certain 
great ends. Now I ask, if reason and 
law, and nature, and justice, do not 
bU require that a near blood relation shall 
not be competent to sit in a case where h'S 
heart and feeling are interested. It is consist- 
intwitiithe principles of common hum nity. 
The reasons that exclude tiie judges of other 
courts from sitting i those cases iu which they 
are interesteii aie but the re-aflirmation of 
great fundamental principles 'No judge of 
tue Supreme Court shall practice law or appear 
as couiijelin any courts of the^tate. Nojudgd 
of chanctry shall be competent except by the 
consent of all parties, to sit in ceriam cases " 
The reason of this is founded in nature and in 
justice. We know that human naure, consti- 
tuted a- it is, cannot determine a case where 
its own interests are involved. In uch a case 
a man would either do himself extreme injus- 
tice, or tlsehe would fail to do justice to the 
opposite party. Where he is connected wich 
the ac.;u-cd party by blood relation within 
the sixth d' gree, he cannot be allow ed to jiuige 
the case. Why are these exclusions made? 
Because men have hearts in ttielr bosoms ; be- 
cause they cannot divest themselves of those 
leeiiiigs which natuie and humaniiy have 
plan.el iu their breasts. Idonotsa\ ihat this 
court is bound by mere technical rides, but I 
say that this court, si ting as a court of Im- 
peachment, is to be governed by the common 
law of the land, ihe law of reason 
and of nature. The constitution pro- 
vides that the frenate may be a high 
Court of Inii'euchment. It is then clothed 
with alt the power necessary to execute the 
object lor which itis assembled, unle^siu cases 
forbidden by the constitutioi. If the gentle- 
men ou the other side can put their finger 
upon any constitutional provision wliich for- 
bids the exercise ot this power, then we are 
estopped. But they argue, that in the absence 
of technical rules we tiave no power at all It 
may be said that this U extraordinary power, 
■md that this power may be abused. The 
Judgesof the Supreme fjourt may abuse tlieir 
power, the judges of inferior com ts mav aouse 
their power, and you may abuse your p vver. 
But the argument of the posside abuse of 
pos\eris uo argument against the use of that 
power. You are silting here under the com- 
mon law of the land, the unwritten law. the 
law of reason and of justice. The legisla- 
ture has prescribed no code of laws in such 
cases. rh>y have confided in your honor, 
vour iudgmcnt and your mord sen-e, to Cirry 
out the ends 01 a Court of Impeachment, for 
the benefit of the people. Suppoe a 
member of the bar, who is peraiitted to 
appear before this court, should b ■ gnd'y of 
coinemptof court, should destroy its respe. la- 
bility in the eyes of trie community by a. enun- 
ciation of this court, by CO itumelious e>pres- 
s ons. Wliat reroe y would you have then? 
Would you be compelled to sit here and crouch 



under the denunciations of counsel without any 
remedy? The thing is absurd. Supp se that 
meud)er of the bar persisted in hs abuse, 
Avould nf'i the !-ergeant-at-Arms be required 
toair. St him, tostop his iiu.uih, ant if neces- 
sary to ran-v hiui to prison? 1 apprehend 
tha't 3-ou liave the power to preserve 
order and silence and decorum in this 
b)dy. la other ^xords. you ar<^ clotheil with 
entire plenary power, and have all tlie iUthori- 
ty necessary'tu enable y>.u to sit and try this 
impeachment. 

[The speaker here read a few extracts from 
the report <'f the impeachment trial of Jndge 
"Williams, before the 'J ennessee Senate in is-z9, 
during which trial Senator Campbell was not 
allowed to sit, because he was a brother-in-law 
of tlie party impeached. Mr. Trimble claimed 
that this case was analogous to the presentone, 
and that it was a precedent that ought not to be 
overlooked. In conclusim, iMr. Irimble said 
thit this question w is one upon which he had 
not reflt cied, and that he had not previously 
intended to make any argument upon it.j 

Mr. Ewing, one of the counsel lor respond- 
ent, here stated tiiai he would like to be heard 
on til is question Mr Trimble co'semel, but 
claimed Ehe right to reply. Some litHe discus- 
sion then aro^e as to whether the aryumant 
should be proce-ided with or whether the com t 
should adjourn, so as to allow counsel on each 
side to lockup authoriti s and c 'ntinue the ar- 
gumc! t on tlie following day. 

Mr. Maynard stated luat perhaps it would 
be well for the respondent to file their answer 
now. 

Mr. East then read the answer to the articles 
impeachment as follows : 

ANSWER OF JUDGE FRAZIER. 

This respondent, in proper person, comes into 
court and protesting that there is no such crime 
alleged in said articles of impeachment against 
him, such as require his dis(iiialilicationand re 
mo\al from oilice, or to which he is, or c;in be, 
bound to make answer; and reserving to himself 
allbenelitof excei)tioiis thereto for insufficien- 
cies, in as full and ample a manner as if the 
same had Ijeen formally demurred to and pro- 
testing that he ought not to be injured by rea- 
son 01 anything- thei-ein contained and charged, 
tie -ubmits the following by way of answer 
thereto : 

He says that, on the ^8th day of June, 1861, he 
received a commission f . om the Governor of tn.e 
fatate of Tennessee, as -Judge of the Criminal 
Court of the special district composed of the 
counties of Huthei ford Havidson and Mont- 
gomery; and subsequently this district was 
changed, so as to be composed of the counties of 
Rutherford and iiavidson; and by a vote of the 
people, on the 22d day of Feb na y, 186 •, he was 
confirmed in said office an'ithatas such .Judge 
he was exercising the functions of said office on 
the 4th day of .July 1S66 and subsequent to that 
time Kespond ent ailmits that by proclamation 
of ilate June lOih, 186(3, his Excellency, Win. G. 
Brownlow, did call the members ot the Gen- 
eral As-embly to ni' et in extraordi ary ses- 
sion ai the State House, in the city of Nash- 
ville, on th.^ 4th day of July, 18n6, for the pur- 
poses mentioned In said Hrst ariicie of the bill 
of impeachment. Respondent says that he is 
informed and believes that, on said 4th of July, 
1866, many of the members of the House oi 
Representatives d d so meet, butthatthe num- 
ber so ass-mbled was less than a quorum of said 
House; and that, on nooay between the &ai'1 
4th of Jul , ami th^ 11th day of said month, did 
more than forty-nine members of said House 
of Uepr' sentatives assemble, or answer to the 
call of the roll of said House. He further ad 
mif.s that on the said 11th day of July, 1866, the 
resolutions set out in said articles of impeach- 
ment vveie voted upon and passed by the mem- 



bers so assembled, being, as before stated, less 
than a quorum of said House. 

Respondent does not know, nor is he pre- 
pared to admit, upon what articles of the Con- 
stitution of the Slate said resolutions wee 
based, nor doe-- he know anything of said rule 
No. 14, nor does he remembe ' of ever having 
seer the latter, or known of its existence, until 
he saw it in said articles of impeachment. If 
the same hud ever liefore been 'ailed to his at- 
tention he now laiis to lemember it. 

Respondent, further answering, says that the 
first time he ever knew either of'the pei-sons. to- 
wt: A. J. Martin, Pleasant Williams or Wil- 
liam Heydt, or their relative relations to the 
government, as chargel, wa in the manner 
following, and by the papers hereafter shown, 
in which their names and offices are stated. 
Kespoiident says that on the 16th day ot July, 
1806, a p' tition was presented to him. as Judge 
aforesaid, for a writ of habeas corpus, as fol- 
lows: 
"?b the Hon. Thomas N. FrazUr, Judge, etc.: 

"Your petitioner. Pleasant Will ams, a citizen 
of Carter county, in the State of Tennesree, 
would show unto your Honor that he is a mem- 
ber of the Legislature of the State of Tennessee, 
being a member of the lower house; that on 
the 28th day of May, la66, the said Eegislature 
adjourned over to the first Monday of Novem- 
ber. It66, and in so doing, by its own adjourn- 
ment, fixed the time of meeting. Since that 
time— that is. since the arljournment— his Ex- 
cellency,W, G. Brownlow, by i-onie sort of proc- 
lamation, has ULdertaken to convene the Leg- 
islature; and unfit r said proclamation some of 
the members came together, but failed to get a 
quorum, and up 10 this time have not had a 
quorum. Said members, iieing less than a quo- 
rum, have u'dert.iken, through one Wil iam 
Heycit, to arrest, and have arrested, such niem- 
lers as were not present; and on the 1.5th day 
of the present month, one Thomas Frame, in 
conpany with a negro, whose whereabouts is 
not now l^nowTi, came to the house of peti- 
tioner, in Caiter county, Tennessee, and claim- 
ing to a't undfer and by authority of said lleydt, 
arrested petitioner and broutcht him to the city 
of Nashville, where he is now held illegally by 
said He>dt an<t Frame; that said parties, 
Heydt and Frame, ai:tually now have the pf - 
titioner under arrest, and claim therightto hold 
him as a prisoner; and, therefore, petitioner 
avers : 

"1st. That he is illegally deprived of his lib- 
erties by the parties afoiesaid. 

'•2d. Fetit'omr states that, according to the 
bestinlorm-tion he has, he was arrested by au- 
thority of a resolution p.assed bv the members 
oi the Legis ature, or some of them who came 
to the cav)itol under i-aid proclamation— a copy 
of which is here given, as follows, to-wit: 

"Resolved, 'lh,tthe Speaker be directed t is- 
sue warranto of arrcft for Messrs. Martin, 
Representative from Jackson county; Brittle, 
from Smith; Porter, from Henry; Mar;ible, 
from Benton and Humphreys; Dunnaway, 
iroin Bedford; Foster, iroin Hamilton, and 
Williams, irom Carter refract ry members of 
this House and thatCapt du Heydt, as Sergeant- 
at Arms, be authorized tu emplov such assist- 
ance as mav be necessary to carry into efl'ect the 
or.lers of thisbodv, and that -aid Sergeant at- 
Arms In-ingsuch members before this House, to 
answer for 1 heir disorderly conduct and con- 
tempt of thi- House. 

"3d. The legalitv of this restraint has not al- 
ready been aiijudged upon a prior proceeding 
of the same character of this to the best ol pe- 
titioner's knowledge and belief. 

"4th. This, the first application tor the writ of 
habeas corpus, petitioner therefore prays that 
said William Heyd and Thomas Frame, both 
of whom are now in David^on county, in t.e 
city of Nashville, be made defendants and re- 



8 



qii'reii to answer this petition, and that the writ 
oi' habeas fiorpus issue to bring petitioner be- 
fore your Honor, that justice may be done in 
tlio Dremises. 
[Signed :l Pleasant Williams, 

By J G. (Jakrigan. 
State of Tennessee, Davidson county : This 
dji-v personally HI) i eared b fore me, ttie un- 
ders'gne<l. Juiljri! ol 'he ( rimiual Court for 
till- counties of Rutherford and Davidson, iu 
^aid i^tate, Joseph G. Carrigan, as agent, oi 
ihe petitioner, Pleasant Williams, in the fore 
going peiition, atid made O'th that Ihe farts 
i'S therein stated, are true, to the best of hi.- 
kuowledge, information and belief. 

J G. carrigan 
Sworn to and subscribed beiore me, this 16th 
day of July, 1836. 

TnoMAS N. Frazier, Judge. 
And thereupon, thf respondent itsueu the 
following writ. ti»-wit: 

"STATE OF Tennessee— To the Sheriff of 
David-on county, Tennessee:— You are hereby 
commanded to summon anil commaml \Vm 
Heydt and Thomas Frame to bring the body of 
Pleasant Williams, with the cause of hisd' teu- 
tioii, beiore me at 9 o'cloct a. m., on the l7Lh of 
July. 18 6, at the court house, in the Circuit 
Court r om, in the city of Nashville, Davidson 
couniy, Tennessee, that his case may be dealt 
with as ttie law directs: the petition of said 
Williams, sworn to, having been pi-esented to 
me, in which it is alleged that the faid Heydt 
and Frame have him, the said Williams, in cus- 
tody an I conliuement tinder an arrest, and 
hold him as a iri-ouer unlaw luUy. You, the 
said Sheriff, shall read aud make known to the 
said Heydt and Frame the contents or this writ; 
and you, the said Sheriff, will have this writ 
be ore me at said time and pbjce. with a return 
thei'eon of your doings in the i^remiscs. Th s 
the 16th day.ot July, ISBii. 
[Signed:] "Thos. N. Frazier, Judge, etc.'' 
That he knew nothing more of said Williams 
or the cause of his alleged illegal conflnemeut 
an') restraint u|jon his libertb s than is in said 
petition stated. Said writ was issued to the 
Sheriff of Davidson county, and oa ti e loUow- 
ing day was r< turned b3'said officer, endorsi d 
as follows, to-\vit: 

"Came to hand the same day issued, and exe- 
cuted same day, on William Heydt. by reading 
to him the within, and Thomas Frame is not to 
be lound. 
[Siiiied:! "E. E Patterson, Sheriff." 

And thereupon, said Heydt not appearing, 
and said Williams n't aiipearing, s id Heydt, 
by his counsel, made the following return to 
said writ: 

return OF WILLIAM HEYDT. 

"William Heydt makes the following return 
to the writ o habeas corpus sued out before the 
Hon. Thomas N . Frazier, Judge, etc., by P. 
Williams, together with thecauseldr not bring- 
ing the body of i-aid P. Williams. That resiiou- 
deut is an oilicer being the Sergeanr-at- Arms oj 
the House of Uepresenialives of the Genei'ai 
iissemblyof the State of Tennessee; that on 
the 14th day oi July, l&ce he arres ed the peti- 
tioner, who is a member of taid House of llep- 
ri-sentatives, being a Ri'|iresentative from the 
county of Carter, in said State, under the au- 
thority containeii in awarrant issued by the 
Speaker ot said House of Represeutativi s, on 
the 11th day of July, 18(j6, a copy whereof is 
annexed hereto, and made a part hereof, 
marked (A,) which wa-; issued in pursuance of 
a resolution aiop ed on the tlih day of July, 
186ti. by ^ald House of Repr' sentatives, a ci r- 
tified copy wher ofis herewith ri turned and 
made a part hereof, marked (B;) that at the 
t nie the saul writ of habtas corpus was served 
on respondent, he had, in pur.-uance Oi aud 
inobeuience to said warrant of arre-a, issued 
by the said Speaker of the House ofKeprtsen 



tatives, made return of said warrant, through 
said Speaker, to said Hou'e of Representatives, 
then in session ; and the said House of Repre- 
sentatives, alter the service of said writ, to 
wit, on the 17th day of July, 1866, adopted a 
resolution, a copy whereof is returned here- 
with, marked (C,) containing an order on re- 
s|)onden„ to continue under arrest all members 
of the said House of Representatives detained 
by respondent, under the resolution directing 
said arrest, until othi rwise ordered by the said 
House of Representatives ; and respondent re- 
turns that fact, together w ith the fact that 
said petitioner is not in the custody of respond- 
ent, but heldbv the saiil House ot Reiiresenta- 
tives as the cause for not brinjiing the body of 
the said WilliatES before the Judge to whom 
this returnis now made, this nth day of July, 
1866. "William heydt." 

"Sworn to and subscribed befire me the 17th 
July, 1866. David C. Love, Clerk. 

"By J. F. Hide, D. c." 
(A.) 

Speaker's Room,) 
Hall of House of Representatives. > 
Nashville, Tenn. July 11, 1866.> 
To Capt. Wm. Heydt, Special Sergeant-at- Arms of 

the House of Representatives: 

Yi u aie hereby charged with the proper ex- 
ecution of the following order, this day made 
by the member^ present of the House of Rep- 
resentatives. You are required to make due 
reuirn of tne executon of the same, through 
me, to the House of Representatives now in 
se-sion. 

Given under my hand and seal, the day and 
year aforesaid. William Heiskell, 

Speaker of the House of Representatives. 
(B.) 

Resolved by the House of Representatives of the 
State of Tennessee, That the Si^eaker be directed 
to issue warrants of arrest lor Messrs. Martin, 
Representative from Jackson county; Brittle, 
from Smith county: Marabie. irom Benton and 
Hura|ihriys counties; Porter, from Henry 
county; Brown from Madison county; M. E. 
W. Dunnawiy, from Bedford county; Foster, 
Irom Hamilton county: Overstrewt, irom Over- 
ton county; and Williams, from Carter coun- 
ty, refractory memb rsof this Hou>e; and that 
("apt William Heydt, as Sertf-eant-at-Arms, be 
autiiorized to employ such assistance as maybe 
necessary to carry into effect the orders of this 
body; and that said Captain Heydt, as Ser- 
geant at- Arms, bring siid members before this 
Hou^e to answer for iheir disorderly conduct 
and contempt of this House. 

Adopted July 11 1866 

A true and correct copy of the original reso- 
lution. 

Fd. H Govpev, 
P. C. of the House of R. 
(C.) 

Whereas. A proclamation by His Excellen- 
cv. GosernorW.G. Hrownlow, the present Leg- 
islature was assembled unoer a constitutional 
provision to this end; and wnereas, divers 
members ab-en ted themselves from its lawful 
service, in contempt thereof; and whereas, said 
House of Representatives, in the exercis of its 
lawuil poW' r, and to preserve its organiza- 
tion, a 'opted the following resoiutions. to-wit: 

-Resolved, That the Speaker of the House of 
Representatives be directed to isstie Avarrauts 
of arrest for Mr Martin, Representative fiora 
lackson county; Mr Brittle. Representative 
from Smith county; Mr. M>'rable, Repeesenta- 
tive from Benmn and Humph eys counties; 
Mr. Porter, Representative from Henry county; 
Mr. Dunnaway, Representative from Bedford 
county; Mr. Foster, Representati efnun Ham- 
ilton e.ounty; Mr. vVi liams. Representative 
from Carter county, refractoi-y members of this 



House, and that Capt. Hevdt, as Serffoant-at- 
Arms be autho' ized lO employ such assistance as 
mav be recessarvto carry into effect 'he orders 
of this body : and that saiil Capt. Heydt. as Ser- 
geant-iit Arms, brin? said members before this 
House to answer for their conduct and con- 
tempt ofthis House." 

•' And whereas, (^apt. Heydt, as special Ser 
geant-at-Arms, through persons properly au- 
thoriztd did proceed and did arrest P. Wil 
liam>, Representative from Cinrter county, in 
Obedience to said order of said House of Repre- 
sentatives, and now retains him in custody; and 
whereas, a writ of habeas corpus has been sued 
nut before His Honor, Judge Frazier, of the 
Criminal Court of Davi Ison county, and served 
uponCipt. Hfydt. commanding him to appear 
before him, u iih the body of said P. Williams, 
Representative from carter; therefore tie it 

" Besolved hy the Hou^e of R(■pre^elltative8, 
Thit we do lespecrfuUv, but m'>st iniiihati<'ally, 
deny the jurisdiction of said Criminal (uurtin 
the premises, and the autiionty of said court 
to iiitertere in the discipline and organization 
of the Hou^e of Represeniatives; and direct 
Capt. Heydt, asS er<eant-at-Arms, to tender 
this resolution to His Honor, Judgp Frazier, 
as hi> return to said writ; and, furthermore, 
that Capt. H' ydt be direct d to continue un<ler 
arrest, all members detained bv him, under 
saiil resolution, until otherwise ordered by this 
House 

•• Adopted July 17, 1866. 

"Atr^eaud correct copy of the original, 
now on file with my papers 

"Ed. H Gowen, 
'P. C. of the H. of R." 

Upon the return of said Heydt, the coun- 
sel of suid Williams moved respondent, as 
Judge aforesaid, for an attachment tor con- 
tain nt, for the body of said Heydt, because of 
his failure and refusal to bring beiore the 
court the body of said Williams, and claim to 
ba~-e their right to the motion and for the at- 
tachment, upon the lollowing sections of the 
Code of Tennessee : 

"dec. :-<75t. Disobedience of the original writ, 
or any subsequent order theri on. suiijects the 
defemlant to commitment for contempt, and 
also to a torfeiture of one thousand dollars to 
the party aggrieved, be>ides rendering him 
liabl for all damages sustaii.ed in consequence 
of su -h disobedi.-nce. 

"Sec. 375i. The attempt to elude the service 
of the writ of habeas corpus, oi* to avoid the 
effect thereof, by transterring the plaintiff to 
anothpr, or by coucenling him, is a high misde- 
m anor, for which the guilty person, and any 
one knowingly aiding or abetting him therein, 
shall be finetl, on conviction, not more than one 
thousand dollars, and imprisonment not more 
than one year." 

The motion was, by respondent-, as Judge 
aforesaid, refused for the time, and until coun- 
sel upon both sides could be heard by respond- 
ent, upon the qucbtions of law involved; that 
while respondent might, under the law. have 
refused to receive and return, he was i. duced 
to dehiy ihe issuance of the writ of attachment 
for contempt, through courtesy t > the mem tiers 
of the House, and bee use he felt, no symnathy 
for th ! petitioner, Willi>iras, l)elieving that he 
had acted in bad faith In refusing to meet the 
other members of 'aid House. He induced the 
counsel of said Williams not to pres^; their said 
motion, and tacitly consent ihit he be ri tained 
in custody, absent' from the court, until respon- 
dent, after hearing- the argument, shou'd <ieter- 
mine the law ; and the twos iiccLedingdiys were 
devoted by respon^'ent to hearing the a-gu- 
ments and auihorities of counsel upnn both 
sides; and after an impartial investigat'on of 
the cnise and consider:) tinn of the arguments, 
hiving been actua ed throughout with an \vm 
est desire to attain and arrive at the law of the 



case, on the evening of the fourth day, he de- 
livered the following as his decision upon the 
petition: 

DECISION OF JUDGE FRAZIER. 

" The question before the court has been ar- 
gued by I he counsel, on both sides, with much 
earnestness and zeal and I may say. with great 
learning and ability, and they ba e been listen- 
ed to by the court with deep attention and in- 
terest, and doubtless the court has been mate- 
rially aided incoming to a conelusion upon a 
subject involving notonly the liberty of the citi- 
zen but, in some desrea, the nicely balanced 
powers of the several departments of the State 
government. 

" The writ of habeas corpus has been looked 
upon by the American people as one of the 
chief saieguards ofper.-onal Ibertv, and by the 
constitution and lawsof this Stateit iiiav be de- 
manded by every citizen as a matter of right, 
and no court ispermitted to reiuse it in .ny 
case, e.xcept where the applicant is detaine 1 by 
th-j process of the courts of the United States, 
or when the applicant's petit on shows no 
grounds upon which, by law, reli'f could be 
granted. Upon the hearing of the application, 
if it is manifest to the c >urt that thy applicant 
is illegally re-trained of his liberty, the court 
is bound to diseharge him; but if it appears 
that he is legally ^e^tl•ained, the f.rit should be 
dismissed. The petition in this case, sub- 
stantially alleges that the petitioner. Pleas- 
ant Williams, is a citizen of the State; that he 
is a member of the Representative branch of the 
Tenn' s-ee l egislature; that on the 28th of May 
last, said Legislature adjourned, to me t again 
on the first Monday ot November next; that 
since sa'd adjournment the Governor, by pro- 
clamation, had convened, or attempted to con- 
vene said Legislature; that no quorum had 
been obtained in the House, and that less than 
a quorum of the House had passed a resolution 
authorizing the d' fend int, Heydt, as Sirgeant- 
at Arms, to bring petitioner, with other absent 
members, to the House of Representatives, to 
answi r for their dis-^rdcrly conduct and con- 
tempt; that under said resolution, the defend- 
ants, Hev'lt and Frame, arrested pet;ti mer, 
carried him irom his home, in Carter county, 
to Nashville, where they now hold him a 
prisoner; that said arrest and imprisonment 
is illegal, ami prays to be released. Upon the 
petition, a writ issued and was executed on the 
defendant, Heydt, requiring him to bring the 
petitioner, with the cause of his detention, be- 
fore the court; and to this the defendant, 
Heydt, bv his attorney, and without pro ucing 
the body'of the petitionee, presented his re- 
turn which, in substance, states: "That by 
virtue of a resolution of the House of Repre- 
'cntatives, directing him, as Seraet.nt-al Arms, 
to bring th" ijetitioner, with other absent mem- 
bers, to the House, and a warrant issued there- 
on by the Speaker, he had arreste i the peti- 
tioner and brought him to Nashville and to the 
House of Reprosentutives; and that since the 
service of said writ said House of Representa- 
tives had passed another resolution directing 
him to keep the prisoner, and not produce him 
to the court as required by said writ. 

"The necessity for the production of the 
prisoner in court, as an indispens- 
able part of the return, being waived lor 
the present, let us nroceed to inquire whether 
the resolutions of the House of Kepresentatives 
and the warrant of the Speaker, a all- dged in 
the return, is a legal and sufficient authority to 
the defendant, Heydt, for the arrest and deten- 
tion of the prisoner In examining this ques- 
tion the court has been sensibly hnpressetl with 
the delicacy of its position, and the magnitude 
of the issue inv'olved. The decision of ihe iiues- 
tion either way, has been represented by coun- 
sel as involving the most serious consequences. 



10 



notouly to the whole country but even to the 
court itselt. Whatever the consequences of the 
decision m^y be. they have had, and can have, 
no inlluenceon the mind or the court, except so 
far as tney may h ive tended to a'd in the proper 
const>ruction of the law involved in the question. 
The legal existence ofthe present State govern- 
met and its several co-ordinate departments is 
not denied; neither is ihe right and power of 
the Executive to convene the Legis'ature in 
extraordinary session, by hislate proclamation, 
seriously controverted. But it is insisted 
by the counsel for the petitioner, that as he 
is a member of the Legislature, by virtue 
of the 13th section of the 2nd article of 
the Constitution ol th • State, he is 
absolutely privileged (rom arrest, during 
the ses>ion o 'he Legisliture, and whilst goii g 
to and returning from the same; au.1 heuce his 
arrest nnd detention is illegal and vod. being 
in' irect violation of ;in express provision of 
the constitution. Frcm the twelfth sei tiou of 
the same ariicleof the constitution, it will be 
seen tha; the Legislature, when duly organ- 
izeil, and a sufficient number present to ti-aus- 
act business, had the power to dPtennlQe the 
rules of its proceed ng» and punish its mem- 
bers for disorderly behavior; and irom the con- 
struction given ly Congress to a provision of 
the Constitution of the Uu'ted States, nearly 
similar in language to the said thirteenth sec- 
tion of the second article of the constitution of 
this State, as shown and declared bv the thirty- 
sixth ru e adopted by the House of K. pre-en- 
tativesfor their government, it seems clear 
that this privilege or exemption Irom arrest 
was intended only to 'rotect the member from 
arrest by other ersons or authorities. outsMe 
of and disconnected witu the Legi?hiture it- 
self; and the Legislature, when.iulv assembled 
and qualiflf d to transact ihcir regular business 
could arrest lawful y, anv one of it^ membL-rs 
for disorderly conduct. But it is further in- 
siste i that the House of Kepresentatives has 
never been org:inized under the proclamation 
of the Giivernor, or at least that it never has had 
a quorum or a sufficient number ol its members 
present to tran-act any bu-ine-s, except to ad- 
journ from day to d ly ; and that the resol ntion, 
under which the petitioner was arrested was 
passed without a quorum, and is void and can 
aflbrd no pro ection to the defend- 
ant. In answer to t!ds it is insisted by the 
counsel lor the defendant, that the court 
has no jurisdiction or right to inquire into or 
decide upon the acts of ttie Legislature, and 
particularly when these acts are in relation to 
one of its own members ; that such action of the 
court would produce a conflict between the leg- 
islative and .iudi ial departments ofthe gov- 
ernment. It is cheeriully and readily conceded 
that the courts h .ve no right or authority to in- 
terfere with the Legislature in the regulation of 
Its own body, or the punishment of its mem- 
bers, in any mnnner thev may see fit, when it is 
once organized as a legislative body; and it is 
farther aihnitted that it is always a rielicate and 
unpleasant task (or the court to decide any law, 
resolution or other act of the Legislature to l>e 
in conflict with the constitution, and theref 're 
void, and should never be done but upon the 
most satistactory conviction of the illegalitvof 
the acts. But surely it cannot be denied that 
from the very organization ofthe several de- 
partments of the government, that it must often 
become necessary for the judicial to deterinine 
the validity of the acts of the legislative. This 
is one of te balances of the power so wisely 
provided by the constitution. The legis ative 
depaitment is governed by law, as wed as the 
judicial; it can pass no law or resolut on not 
authorized by thecunstitutionin express terms. 
or by n asoua iie and nece:^sary construction or 
inference. The judicial must declare what is 
law, and in doing this the courts are necessarily 



compelled to determine, when the question is 
presented, whether the law, resolution or act of 
the Legislature under consideration is valid 
and binding, or not. 

"The resoluti'in, set up in the retnrn, as justi- 
flt.ati )n for the arrest, and now under consider- 
ati'in, was obviously passed to enf rce ihe at- 
tendance of absent fnember-i. Bv the last clause 
ofthe eleventh section o'' second article of the 
constiiution, it is provided "that two-thirds of 
each House shail constitute a quorum to do 
busine-s ; but a smaller number may a^ljoura 
from day lo day, and may be ;iuthorized by law 
to compel the attendance of absent members. 
Now, it is insisted by the cuunsel for the peti- 
tioner that there was no quorum in the House 
when the resolution was passed, and that there 
is no law passed, either for the uovernment of 
the Honse or othpr\\ise, author izini;- a less num- 
ber than a quorum to enforce such attetuiance, 
and hence the resolution is without authority 
of law, and void. On the o'her hand, it is in- 
sisted that, by the common 'aw, by parlia- 
mentary usatce, and the necessity of the case, it 
may be done, and that the Legisla ure, oi- any 
number of ts members eh ct. can do anything 
in the ordinary b^^unds of Legislation which is 
no' expressly pr^ hibi'ed by the constitution. It 
seems verv- clear, that in this country the 
power of the Legislature to ma' e laws is de- 
rived alone from the constitut on, either ex- 
pres>l}' granted or reasonably to be in. erred ; 
that individual II' embers can do no leg'sJative 
act. merely trom their election, no more th m a 
'lan could act from an appointment or election 
without a commission ; hence, before thev can 
pass laws or do any othir valid act of legisla- 
tion they must unite and form themselves into 
an assembly, and beiore they can proceed to 
business, there rnust be present at least two- 
third- of the whole number. IS ow, it' the con- 
struction contended for was admissible, that 
any number of members duly assembled, can 
(lo any business not express. y forbi Iden, this 
provision of the constitution would be 
wholly nugatory The constitution permits a 
quorum to do business, but it surelv does not, 
Ijy express terms or reasonable construction, 
permit a ess number to do more than to ad- 
journ from day to day, and to enforce any law 
ill existence made to compel the attendance of 
absent member*. Then, is there any law or 
rule of the House adopted by a quo- 
rum, authorizing a less num er of members 
than a quorum to enforce the attend nice of 
member.-.? there has been none referred to the 
court, nor has it been able to lind any. Is such 
law or power inherent in such a number, or 
may it be inferred from the neces-ity or nature 
of the case? The courc is unable to see it, if it 
is, or <'an be iiferred. It i- readily conceded 
that it is the duty, and a high and solemn duty of 
every member otthe 1 egislature, o attend when 
duly called by the Executive or otherwise,and to 
to tike part in its proc' edings, no matter what 
may be bef ire it, or how much h' may be op- 
posed to the action of the maiority: but if his 
sense of duty and moral obligution do not force 
his attendance, and the Legislature has pr.jvi- 
(led no law by which a less numijer than a 
quaru'i) of the members ctin enforce his atten- 
dance the evil, no maitei' how great must be 
borne til' a remedv is legally provided, and his 
,a'r St without authority of law, luust be deem- 
ed illegal. And it can>.ot be perceived how the 
declaring by a court that the act- of one or any 
number of members ofthe Legist dure, less 
than that authorized by Ihe constitution and 
laws of the State to act in the capacity of a 
Legislature, to be iUegal, could be construed to 
be interfering wiih the privileges of the 
Legislature or conflicting with the legislative 
department "f the government, simply becau->e 
the court undertakes to decide upon questions 
arising between some of its meuibers. Surely 



11 



it would never be contender), that if one or 
many of the members of the Lefrislature 
should seize and imiirison another member, that 
acourt could not interfere for his relief simply 
because t'ley were all members of the S;.me 
Legislature. Members of tho Legislature arc, 
in their Individ i.al capacity, as amenable to 
law as otlier pers'.ms, and h;ive no privileges 
above other citizens, except while in the capac- 
ity Sof legislators in session, or going to and 
from the place of assembly. But it is said that 
theie is no sufficient evidence before the court 
showing fat the resolutions set up in the re- 
turn as a defense, W' re uas-ed by a h ss numiitr 
than two thirds of the whole Legislature, and 
that in the present state ul the pleadings in this 
case, it should be taken th it they were passed 
by a quorum. The i^etitioner alleges, as one 

f round of the ille^'ality of his restraint, that 
e was arrested unileran order or resolution 
passed by a number of the members of the Le- 
gislature less than a quorum. The return of 
the defendant does not deny this allegatiofi. or 
IS the fact that the resolution w;.s passed by a 
quorum atLrmed in the return, except inferen- 
tially; and it was not denied, in point of fa: t, 
in he argumfut. The act that noquorum had 
been obtained wms daily published in t' e legis- 
lative ori;an, and it may well be inferred from 
the resolution itself; it dir-'cts process against 
various absent memiiers, indicating that the de- 
sire for their attend mce was to secure a quo- 
rum. It is true that the resolution charges the 
absent members with disorderly conduct arrd 
contempt; these arc indefinite expressions, and 
might be aiij)lied to an obstinate refusul to ap- 
pear But there seems to be a distinction 
drawn hy the e institution between disorderly 
conduit in iheA.^embl and a mere refusal to 
attend. In the former, they had to be presented 
by the House; in the latter, their attendance is 
en'orced bylaws passed for that express pur- 
pose. In view of all these facts and circum- 
stances, it would be a very technic 1 adhes ence 
to the rules of pleading and evidence, to hold 
that the^e re-olutions Wt re passed by a quorum. 

" Upon the whoie case, alter mature and jUx 
iou- refl ction and Mirely unbiased and unin- 
fluenced by any e.xternal circumstances or re- 
sults, but alone influenced by a solemn convic- 
tion of public duty, the court is constr tined to 
decide that the return shows no legal srround 
for the restraint of the petitioner, an aflbrds no 
legal justiBciition to the deiendant. for it e ar- 
rest ; nd as the de endant has failed to produce 
the pr.soner ; e ore the court, as required by the 
writ, an attachment must issue against him for 
contempt." 

And having reached the conclusion an- 
nounced in said opinion, he therefore issued said 
writ of attachment, tipon the renewed motion 
of the coiMisel, lor petitioner and precept lor 
the body of said Williams, who had been so held 
up to tliis t me, to the bherifl', as lollows : 

" STA.TE OP Tennessee— To the Sheriff o' 
Davidson county: Whereas, A writ of hibeas 
corpus was issued hy me, Thos. N. Frazier, 
Judge of the (. riminal Court etc., on the 16th 
day of July 1866, commanding William Hevdt 
to bring before me th- bo<iy of one P easant 
Wi Hams, who, it was alleged whs illegally 
constrained of h's libery by said Heydt; and 
whereas, said Heydt made a return without 
bringing the body of said Williams, and which 
return shows ttiatsaid Williams is held under 
and by a resolution of the House of Reiiresen- 
tatives of the State of 'lennfssee; but it b ing 
expressly charged iv the petition, that this res- 
olution Avas passfdby less than a quorum, and 
not being d'-i led by the reiurn. and the under- 
signed Judge being satisfied fiom ihe whole 
case, that s.ud Williams is held under a resolu 
tion of persons who are meinbeis of the Legis 
latui'e, but that there was no quorum, the object 
being to procure u quorum, and the undersigned 



Judge being of opinion that less than a quorum 
could not arrest another member, there having 
hcennolaw i)assed, authorizing it; "ud there- 
tore, that said return is insullicient, and thut 
said Heydt is in contempt; and the petitioner, 
by his counsel having moved for a wr t of at- 
tachment, to attach the body of said Heydt, 

*"l hese are, thereioe. to command you, the 
Sheriff of Davidson county, to attach the body 
of Wm. Heydt, and bring him belore me to an- 
swer lor his contenpt, and that the sheriff also 
bring up the bo'ly of the said Pleas.mt Wil- 
liams, to the end that he b discharged, and no 
longer restraine I of his liberty, ani that you 
execute tills writ and make return thereof, in- 
stanter, befoi-e me, at the court house In Nash- 
ville 

" Given under my hand and seal, this I9th day 
of July, 1866. "Thos. N. Fkazuk, 

Judge of the Criminal Court. 

And the same was returned as follows : 
First Ketukn.— " Came to hand the same day 
issued, and executed in part by t iking the body 
ot Capt. P. Will ams, and bringing him befoie 
the Hon. Thos. N. Frazier, by command. Heydt 
has not yet been found 

•• W. C. Shaw, Deputy Sheriff." 

Second Return.—" Since last evening I have 
executed the wiih n writ of attachment, by tak- 
ing the Ijody of William Heydt, and have ■ im 
here now before your Honor, to be disposed of 
as the law directs. This July 20th 1866. 

" W. C. Shaw, Deputy Sheriff." 

And thereupon, respondent, as Judge afore- 
said, delivered the following as his opinion: 

JUDGMENT OF THE COURT. 

"The state of Tennessee on the relation of 

Pleasant Williams vs. William Hey^t and 

Thomas Frame. 

" Petition for Writ of Habeas Corpus. 

•'Uiion the petition in this cause, a writ was 
issued to the ^htriff of Davidson county, re- 
quiring him to make known to the defeiidants 
Heydt Mill Fr., me, that they were required to 
bring the body of the petitioner, before me, at 
the court, house in Nashville, on the 17lh oi 
July. 1866; which w'as returned, executed on 
the defendant Heydt, Frame not to l)e lound. 
On the 17th of July, 1866, the de'endant Heydt, 
by his alt rney, without producing the petition- 
er beloie the court, presented his reiui'ii; and 
the necessity of the iJioduction of the pttit on- 
er being lor the prestnt waived, the legal 
questions involved in the return were argued at 
great length by thee iiusel on both sides; the 
court delivered its opinion in writ ng, upon the 
sufficiency of the return which is referred to, and 
made a purt of this judgment; and lor the rea- 
sons therein assigneil, the court he d the return 
was insuUicient to justify the arrest and deten- 
tion of the petitioner, and ordertd an attach- 
ment against the defendant Heydt, which was 
returned executed in pait by producing the 
b dy of the petitioner before the com t. on the 

9.h of July, 18S6; an'i therefore, the said Pleas- 
ant Williams was released and tlis-harged from 
custody by the court; and said attuchment be- 
ing returned again on the20th of Jul , 1866, ex- 
ecuted in full by arresting, and bringing the 
boity of the defendant, Heydt. before the court; 
and the court being satisfied from the return of 
the whole case th;.t the defemlant Heydt hod 
intended no contempt of the authority of the 
court; that theari-estof the petitioner, and sub- 
sequent detention, was done by him, under 
what he supposed was legal authority; it was 
therefore ordered and considered, that the said 
defendant, lledyt, he discharged and released 
from the attachment; and tliat he p.ty the costs 
of this application, which costs were pa d over 
by him in the presence of the court, and the de- 



12 



fendant was permitted to go hence, without 
delay. 

"Thomas N. Frazier, 
"Judsre of the Criminal Court, for 
"Davidson and Rutherford counties 
"July 20th, 18615." 
Respondent would further answer and 
show, that on the 1.5th day of Jul v. 1866, the fol- 
io. v incr petition was presented to respondent, 
as Judge aforesaid, in behalf of Hon. A. J. Mar- 
tin : 

" To the Hnn. Thomas JV. Frazier, Judge of the 
Criminal Court, eta : 

"Your petitioner, A.J. Martin, who is a citi- 
zen of Jacksou county, in the State ol'lenner.- 
see, >• ould show unto your Honor, that he was 
elei'teii as a member ol the lower house of the 
Legislature of the State of Tennessee, at the last 
election held for said county of Jacksou ; that 
about thy middle of May la^t the Legislature 
adjourned over until the first Monday in No- 
vember next thereafter; that since that time the 
Governor, b\ proclamation, ordered the Leeis 
1 ture to convene at Nashvd e, on the first 
Moudiy in July, 1866. S me of the membe'S, 
but not enough to make a quorum, in puisuance 
of said proclauiLiti in, came to Nashville Peti- 
tioner did not come. ! pon ascertaining that 
they had not a quorum, they (the members pres- 
ent) i)assed a resolution, ordering one William 
Heydt to arrest iietitioner, with other members 
who were not pre-ent; ihat said Heydt, under 
the direction of said members, did, on the — day 
of July, 18C6, by h s agents, arre>t petitioner, at 
his home in Jackson county ; that he was imme- 
cdiateiy brought to Nashville, and has ever 
since been kept a prisoner, and is now a pris- 
oner In the custody of said Heydt; ihat, in view 
of a writ of haieas corpus being sued out, or 
which had been sued out by another memi er 
confined with petitioner, said memoers, at the 
Capitol, passed a resolution, in which they style 
themselves a House of Repre-entat.ves, aud in 
and by said resoluiion ordered petitioner, with 
others, to be still kept a prisoner. 

"Vonr petitioner expressly charges, that the 
persons who passed these resoluton-, were not 
a House of Representatives ; that they nid not 
have a quorum ; that at no time since the pro - 
clamation of the Governor, has there been a 
quorum present ; fifty-six or two-thirds have 
not been present, or were not pre-ent ateith-r 
of said times, when said resolutions were 
passed ; that the Speaker had ilecided there was 
no quorum ano that the object of the arrest 
wa^ to make a quorum. 

"Y'^ur petitioner expressly charges, that said 
body of men, less than a quorum, had no power 
or authority of law for his arrest. 

"Your petitioner expressly charges, that he 
is illegally restrained of his liberty, at the capi- 
tol at Nashville, by William Heydt. 

"That according to the best of his informa- 
tion and belief, he was arrested under, and bj 
authority of a resolution in the loUowing 
words : 

"Hesolved by the House of Representatives of 
the State of Tennessee, Thau the Speaker be di- 
rected to i>^sue warrants of arrest for Messrs. 
Martin, Representative from Jackson county ; 
Brittle, from Smith county ; Marshall, from 
Benton and Hiimphreys counties ; Porter, from 
Henry county ; Ov<'r>treet, from Overton ; and 
Williams, from Carter, refractory members of 
this House ; and that Captain Wm. Heydt, as 
Sergeant- t-Arms, be authorized lo employ 
such assistance as may be nect ssary to carry 
into eftect the orders o this body, and that said 
Heydt, as SergeMUt-at- Arms, bring said mem- 
bers beloro this House, to answer lor their dis- 
ord<-rly con<Iuct and contempt lor this House. 
July 11, 1866." 

"And petitioner expressly charges, that this 
resolution was not what it purports to be, a res- 
olution ot the House of Representatives, but 



that, in fact, it was passed by less than a quo- 
rum, after a formal decision that there was no 
quorum. 

"Petitioner further avers, that the validity or 
legality of thi~ arrest has not been aijudged 
UDon a prior proceeding cl this, lo be best ol pe- 
titioner's knowledge and belief; and tliat this 
is the first application for the writ of habeas 
corpus 

"The premises considereii, let said William 
Heydt, who is now iu Davilson county, be made 
defendant— let the writof h beas corpus issue, 
to have petitioner br ujiht before youi- Honor, 
that iustice raav be done in the premises; and 
tliat he may lie n > longer restraine I of his lib- 
erty ; and let him answer this petition " 

"State OF Tennessee Davidson County:— 
"A. J. Martin niiikes oath that the fa ts st ited 
in the foregoing pe'iii n are true, to the best of 
his knowleilge and belief A. J MAKTipf. 

" W. L. Mathews, Justice of th; Peace." 
And thereupon, respondent, as Judge afore- 
said, issued the following piecept to the Sheriff 
of Davidson county: 

'State of Tennessee, Davidson County— 
To the SheriflT of said County of David on: 
Whereas, A. J. Martin ha^ presented to me, 
his petition sworn to, in whieh it is allegcil that 
he is a c izen of Ja kson county, Tennessee, 
and that he ha» been arrested, and illegally re- 
strained ol his liberty, by one William Heydt, 
in the Capitol, in the city of Nashville, in said 
<'ounty of Davi ison, you are hereby cimm aid- 
ed to read and make known the contents of this 
writ to the said Heydt, aid command him to 
bring the bodv o the said A. J. Martin before 
me. at the Circuit Court room, in the courthouse 
in the city o' Nashville in the said county oi Da- 
vidson, instanter, together with the cause of his 
sail arrest anil d teniion. thut he may be dea't 
" ith a- the lave direc s. Wlien and where you 
will return this urit, with a return thereon of 
your doings in the premists. 
••This 16th day oi July. 1S66. 

'Tuos. N. Frazier. 
'•Judge of the Criminal Couit " 
And the same w.is returned on the 20th day 
of July. 1866,^ s follows: 

"Caine to hand July 19, 1S66, and executed 
this writ as commanded, and the (.;efendant, 
William Hevot, is now before the conn for 
trial. I have also brought the body of the peti- 
tioner, A. J. Martin, bef re the court, to be dis- 
I Gsed of as the law directs. Thi- 20th day of 
July, 1866. W.C, >haw, Deputy Sheriff" 

And thereupon, respondent, a^ Judge afore- 
said, announced the loUowing Jndgment: 

"A J.Martin vs. William Heydt— Peti- 
tion FOB Writ op Habeas Corpus.- In this 
case a writ was issued upon the forego ng peti- 
tion, and placed m the hands ol the Sheriff ot 
Davidson county, on the luih of luly, l.-iBe, and 
returned by said Sheriff on the 20th of July, 
1866, before me, at the courthouse, in Nashville, 
showing that It had been executed on the de- 
fendant; and the said defendant, Ile^dt, hav- 
ing appeared before me, with the bod\ ot the 
said pe itioner, A. J. Martin, as required by the 
writ; and the defendant. Heydt, declines to 
lua-e defense to hi^ actiou in the premises, and 
agrees that it ahidc the d' cision of the cause of 
Pleasant W tlliams, decided by tliis court on yes- 
terdav, on a precisely simibir application, and 
the court being fully satisfied Irom the reasons 
assigned iusaid case of Pleasant Williams, and 
which is liTeby referred to as part of this judg- 
ment, that the petitioner is illegally restrained 
of his litierty, it is therefore co siilered by me, 
that the SMid A.J Martin be released aud dis- 
charged from the cu^to ly of the detV ndant, 
Heydt, and go hence without delay; and that 
thedetendautHeyll, pay the cost of this appli- 
cation, which he at once paid in the presence ot 



13 



the court, and the said Heydt is hence dis- 
charged. This July 20th. 18(56. 

'■ Thos. n. Frazieb, 
" Judge of the Criminal Court 
for Davidson and Ruthirford counties." 
■Rf^spondent would state, th it the case of i^aid 
Miirtin was not argued, or sought to be, by 
counsel for ei' her side, but went off, on the rea- 
sons given in theoase ot Williams, and with- 
out any return of the reason or manner he was 
held or restra'iied of his liberty. 

Kospondent would now submit to the court 
the to lowing sections from ihe <;ode of Ten- 
nessi e. which then and now he conceives to be 
o: liv.ations imposed upon him by law, and de- 
fine his duties as a Judge, in casts of habeas 
coi pus: 

"Sec. 3720. Any person, imprisoned or re- 
strained of his liberty, under any pretence 
wh itsoever, except in cases specified in ttie 
next section, may prosecute a writ of habeas 
corpus, to inquiie into the cau^e of such im- 
prisiinment and restraint 

"cec. 3721 Persons ciimmitted or detained, 
by virtue of process issu"' I by ii court of the 
Uniteil States, or a Judge there'>f, in cases 
where such Judge, or court, have exclusive ju - 
risiiiction, by the com > encement of suits in 
such courts, are not entitled to the benefits of 
this writ. 

"Sec 3722. Application for the writ shall be 
made by pet tion. signed either by th>^ party for 
■whose tjenefit it IS intended. orsome person on 
his behalf, and ver.fi.-d by aflidiivit. 

"Sec 3'(29 It is the d.uty of the couitor 
Judge to acr. upon such applii",aiion, instanter; 
and a wrongful and willful refusal to grant the 
writ, when properly applied for, is a misde- 
meanor iu oftice, besides sulij. cting Ihe Judge 
to damatres at the suit of the party aggrieved 
'•Sec. 3/46. At the ti . e of making the re- 
turn, the person oa whom the same has been 
served, shall, also, produce the body of the p^r- 
«o«. (Z«toi»e<i according t(j the command ol die 
writ, or show good cau>e for not doing so. 

"Sec 3747. Ifthec.iuse shown for not pro- 
ducing such person be si' kne.-s, or iniirmity. 
the fact shall be verified by affidavit, ar,d other 
evidence if required. 

" Sec. 37U1. The party detained shall be re- 
manded to cuslouj , it it aijpears he is decain- 
ed- 

"1st. By virtue of process issued by a court 
or Judge of thri United States, in a. case where 
such court or Judi^'C has exclusive jurisdic- 
tion. 



"2d. Where the time during which said party 
may be legady retained has not expired. 

"3d. In every case iu which the detention is 
atithorised by low. 

" Sec. s7G2. The co?t of proceeding under this 
chapter, excep u hen o hei wise expiessly pro- 
vided, s-hall be adjudged as the court or judge 
may think right, and taxed and collected as in 
other cases." 

Also, respondent submits to the court th- 
high and solemn obligition impose 1 upon him. 
as a Judife of the S'ate, to set; that all the righ.s 
of the citizen areadministcreil. Ry section a of 
the "Billot Righ s" of citizens, it is declared: 
"That no free man shall be taken or imprison- 
ed, or disseized of his freehold, liberUfs, or privi- 
leges, oroutlaweil or exiled, or in any manner 
dcstroyeii, or deprived of his life liberty, or 
propei'ty, but by the judgment ot his peers, or 
the late of the land." 

It wil'. he evident to the court, from a very 
slight observation of ihe sections ot the Code 
relative to habeas corpus, and the c institution- 
al cbiuse relating to this writ and the liberties 
of the citizen, that respondent, as Judge alore- 
suid, was iJlaced under the highest and holiest 
o' ligations of the law, as well as penalties, to 
protect the citizens agai' st every illegal re- 
straint put upon his liberties or privileges; and 



that in any ca-e of doubtful legal authority to 
restrain a citizen, it would be the duty of the 
Jutlge or court to order his release, because it 
is more in harmony with the spirit of our laws 
and institutions, that if an error be committed, 
that it be committed in favor of liberty and 
freedom. 

Respondent admits that he krew that both 
Houses of the Legislature, when corstitutioii- 
ally organized and duly assenibh d with a 
quorum present, possessed high and imi>ortant 
privileges, but he did not know that individual 
members had other or greater privileges than 
a private citizi'n, until a suiUcient number of 
ihem had a-sembled together to constitute a 
coubtitutmnal body comjjetent to act. Re- 
spondent admits that he was bound to know, 
and he did know, at leaKt some of the laws of 
the Und, :iS well us some, if not all, the pro- 
visions of the Constitution of the State of Tei- 
nessee. But he denies that he did know of 
any provis ons ot the constitution, or that 
there is anv pruvidon in the constitution, by 
which a less number than two-thinlsof either 
branch of the Legislature is authorized to pass 
any law or rrsolutioa, or to do any other legis- 
lative act, except to adjourn f.om day to day. 
It is admitted, that by the el'.'venth section of 
tie constitution, that the Legislature may pass 
a law by which, or by the provisions of whi'h, 
a less number than iwo-thirds of either House 
may compel the attendance of ab-eiit members: 
but it confers no power upon such less num- 
ber to enforce attendance by their own mode, 
by warrant, rt'so.ution or other process. They 
cau only entorce the law, when it is passed — 
not pass u ; and re.-pondent deries that any 
such law existi in the statute books of Ten- 
nessee; or, it it does, that he had any kno wedge 
of such law. Rt sponiient further denies, tUat ne 
knevv, a the time of the issuance o' the writ, 
anything in relation to the rules of the House; 
but he did know that a rule of the House was 
no law, unless it hadbeeu passed bvhoth Hous- 
es in the constitutional way. He admits that he 
kiiew that it was one of the rights and privi- 
leges of all duly assemblel legislative 1 odies to 
pif-s laws to enforce the attendance of abseut 
members; but he did not know, that aless num- 
ber than a quorum could ^a4« tow* forthit pur 
po.-e. Respondent admits tiiat he issued the 
writ, after deliberation, willfully; but he again 
denies that it was issued either corruptly or 
mal ciously, or feloniously, as is so often 
charged. Jt is sui stantiaily admitted, in the 
stirtmg point of the first article of impeach- 
ment, that there was no quorum in the House 
at the time Wil dams was arrested, or at the 
time the resoluti n for his arrest w»s passed; 
and respondent asserts, that he did not know 
thut a less number of members than a quorum 
possessed the privileges of a duly organized 
House of Representatives. He denies that he 
had any intent, or desire, to interfere with their 
privileges, and asserts, that if he had kuown of 
any law, obligatory usage or custom, by which 
the membei s, less than a quorum, were author- 
ized to arrest any abseut membt r, merely for 
al sence, he would h^tve refused the writ. Res- 
pondent most positive. V denies tlu.t he h^d any 
desire, or intention, of deleatingthe presence of 
a quorum in the House: and the fact that he 
permitted the members and tho:r:)gent, (.'eydt, 
to hold Williums in custody for nearly, or 
quite three days, while h s case was being 
argued and ileiiberiited upon by respondent, 
shows that respondent had no such intent; tor 
during that time, as nspondent is informed and 
believ'es, a quorum was obtained in the House, 
and the constitution d amendment was duly 
rafifli d by the House long before the said Wil- 
liams was discharged under the writ, tiespon- 
dent, further answering, admits, that after hear- 
ing the argumeiitot counsel on both sides, and 
after examining ad the authorities produced, or 



14 



■which he could fln(3, and after giving the ques 
tion a full, candid, and deliberate consideration 
he was honestly or the opinion, that the return 
made by the said W'm Ileydt to the writ, was 
insufficient, and presented no sufficient legal 
grounds for the arrest and detention of said 
WuUanis, and so deci<led. Kespondt-nt, further 
answering, respectfully insiss.that his decision 
upon the return made to the writ, was legal and 
right; that there is no law, custom, or parlia- 
mentary usage in Tennessee, under which the 
arrestofWili amscnnbejustifled. Byreference 
to the 8:h section of the bill of rights ot I'ennes- 
see,assetout before, it will be seen that it is there 
emphatically declared, "That no iree man shall 
be talseu, or imprisoned or deprived of his lile. 
liberty, or property, but by the judgment of his 
peers or the i^-w of the land." i<'rom this it 
would eem, Chat befoi'e a man can be arrested, 
there must be some iaw authorizing it. It sure- 
ly cannot be done at the mere wiil of one or 
more men. The mere failure, or even refusal of 
a member of tbe Legislature to a' tend is nowhere 
declired to be a crime. In the first article of 
impeiChment, thearrestof Wiliiamsis attempt- 
ed to be justifled undtfr tbe llth and 13th sec- 
tions of tne secomi article of the constitution 
m those two sections, it is seen tlxat two-thirds 
\of each House shall constitutt a quorum to do 
business, but a smaller nu nber may adjourn 
from iay to day; an tli it a smaller number may 
be authorizeii, hy law, to compel tbe attendance 
of ibientm mbers. Now, it is submitted, that 
no lair or rational construction of thesa provis- 
ions could mean more than th.ita less number 
th n two-thirds could . xecute or eniorce any 
law that might be enacted for that pur, 0;e. 'i he 
lith se. 'tion provides lor the makinffof rules by 
each House, for the government of the House in 
Its mode o proceeding, and for punishing its 
members for disorderly behavior; the two sc •- 
tioas, taken tog«ther, making an obvious <iis- 
tinction hetw-en absence and disorderly con- 
du't; int le !atter case, it authorizes each House 
— th:i; IS, whn there is a quorum iresent — to 
punish, :it their di-cretion ; in the fi'rmer for ab- 
sence, neither House separac^-ly, can punishfor 
it, or enforce the attendance; but the attendance 
must he compelled, or ei.lorce'^ by virtue of 
authority ilerived from both Houses, viz: by a 
law duly passed by both Houses for that pur- 
pose. It i> diflferent as to the two Houses of 
Congre-s, under the constitution of the United 
States. By the first article and fifth seciion of 
the constitution of the United Stat 'S, it is p'O- 
valel, that a majority of each Hou-e shall con- 
sttute a quorum to do business; but a smaller 
number may adjourn fiom day to 'lay, .and may 
be authorized to compel the attendance of ab- 
sent members ; not by law, as in Tennessee, but 
by a rule of each or either ot the Houses, or by 
resolution of a majority, or by any other mode 
that either House m.iyadopt. Aiid under this 
provision of the constitution, a rule was adopted 
by the House of Representatives, enforciig the 
attendance of members by arrest; but even un- 
der that rule, fully authorized by the constitu- 
tion, the aisenting member was released irora 
custo ly so soon as he was brought into the 
House" doubtless under the ratiem il conviction 
that, ill a representative government, represen- 
tation must be iree, and not under duress. Re- 
spondent lurther answering, stites. that when 
said tleydt the alleged Sergeaut-at Arms, by 
his counsel, presented the resolution passed by 
the members present of the House, as a return 
to the writ of h ibeas corpus, he faileii, as before 
stated, to pro luce the body of Williams, as he 
was commamled by the writ to do and which 
was a plain and palpable disobedience of the 
writ aud subjected him, by the laws of Tennes- 
see, to commitment lor contempt, to a for eit- 
ure of one thousand dollars, and to damages 
to the party aggrieved. But, as before stated, 
respondent induced Williams' counsel to waive 



the appearance of Williams tmtil the re- 
spondent could hear and determine whether 
he was restrained of his liberty by legal au- 
thority or not, before respondent could proceed 
against said He ydt or enforce the appearance 
ot Williams. And respondent admits, that af- 
ter bearing the case fully argued, and mature 
deliberation, as before stated, iriven to the case, 
he was conscientiously of the opinion, as he is 
yet that the causes and authority alleged in 
the return for tne restraint of Williams was 
insufficient. Sespondent did issue process to 
the ■sheriff of l'>a^id^on county, requiring- him 
to bring the body of Heydt, as well as of Wil- 
liams, beiore respondent, the said He\dt to an- 
swer for his disobedience of the writ, and the 
said Willjaius to be discharge 1; not corru tly, 
maliciously and feloniously, !is charged against 
him, but simply as a matt 'r of cnirs",to effertu- 
ate aud carry out the iudyment he had re der- 
ed up in the liearing of the cause hesiiondent 
further admits that upon this writ the said 
Heyilt and Williams were brought before re- 
spondent, and the said Williams was discharged. 
Hut he most positively denies that the said 
Heydt was fined one cent, for co tempt, as is 
alleged in the second article ot impeachment; 
bat alleges that, t) the reverse of what is 
charced, be intormed said Heydt that re- 
spondsiit was satisfied ihat he had acted u"- 
der the msi ructions of the members of the 
House in gooil faith ; and instead of enforcing 
upon him any ol the penalties pre cribed by 
thestiiu'e respondent discharg"d him, with- 
outcommittmentorone centofilne, mere'y giv- 
ing judgment against him for sBUi and costs, 
which was aoout one half the costs mi the case, 
and withour tiny order that he should be com- 
mitted till it was paid, as erroneously charg- 
ed. Respmdent, fuither answering to the 
charges in the second article of impeachment, 
denies that he exercised ilegal power, or .ts- 
sumed unprecede ted judicial functions^ in the 
discharge ot Williams, as is charg-ed in said 
article. He ins st^ that he rxerciseil no hing 
but the ordinary powers conferred upon judi- 
cial ofdceTs in likeijcases; and he is vmable to 
perceive how it cordd be considered an exercise 
of an illeg d power in a Judge to discbarge a 
man from imprisonment, if tbe party were il- 
legally restrained of his liberiy. 

Surelv this respondent, as a Judge of general 
jurisdiction, had this power; and the only 
(question is, was he, the said Williams, illesally 
restrained of h's liberty? If he was, it is in- 
sisted that It was one of the lommon duties and 
powers ot a Judge to release him ; if he was 
legally restrained o' his libeny, then respond- 
ent exercised one of bis oidmary powers eiro- 
neously, torheas-erts th.t he exercised his 
be>t judgment \\\>nn the que-tion, aud decided 
it as he honestly thought the law was. with no 
improper, corrupt or malicious, dishonest or 
felonious motive, as is alleged so repeatedly 
against him. it is admit ed that respondent 
released Williams from custody, as heretolbre 
stated, u lion an honest conviction that he was 
illegally restrained ot his liberty ; aud that the 
said Heydt was brought before re>pondent to 
answer for his disobedienc'e of the writ of 
habeas corpus, but his appearau' e was more 
from form, to carry out the judgment rendered, 
than anything else as he was at once dis- 
charged," without fine or commitment, or other 
harsh treatment, upon the.'avment of a part 
of the costs, as before stated. Res on dent de- 
nes that he knew that Ca|.t Heydt was Ser- 
geint-af-Arms to the House of R. preseniatives, 
nor did he know that anv such office existed 
in Tennessee, further than in the reso u- 
tion offered as a return lo the wi it of ha eas 
corpus— (Japt Heydt was direct'^d to present 
the resolutions as "sergeant-at-arms." Re- 
spondent admits that from sail resoluiion, pre- 
sented as a return to the writ, he Knew tha'. the 



15 



members of the House present, who did not 
claim to be a quorum, denied respondent's ju- 
risdiction upon the habeas corpus, and thattliey 
had direcied (apt. heydt to hold thf custody o'f 
"\\'illiaius Hut respondent waived all this, ;ind 
took no 'tens to enforce the attendance ol' Wil- 
liams until the case was tully lieard, as before 
stated. Resp ndent adrats that he did know, 
or at least he believed he knew, the powers au'l 
privileges of the Hou'^e of Representatives, in 
relatieii to en orcing the attendance of absent 
niemhers. l)ut he denies that he had any knowl- 
edge of the mode adopted by the members in 
Williams' case, that was authorized bylaw 
Respondent denies that he knew the House of 
Keprrsenr.iirix es had jurisdiction of Williams, as 
he was inforniei(, and so believed, that there 
was 110 quorum present to constitute a Ho' se, 
or lake jurisiliction over him, or do any other 
busine- s except to adjourn. 

R. spondent is well aware that the present 
State L'overnment came into existence, after a 
prutracte i war— and agail)^t the wishes of 
rair.y persons— that before the time of its ex 
isteni e, he, in common with many of his fel- 
low citizens, had contributed whatever ca- 
pacity lie possessed, much of his time and 
labor, to assist in that result — that he had, 
before its existence, put himself, in con- 
nection with th'se whose efforts were direct- 
ed to that end. And long before even its 
mot ar lent friends could do mor>^ than hope 
lor its succe s, and when to indulge such a hope 
publicl, met with fr.'Wns of discouragement, 
and actual danger, he acceptei in its pro- 
visioiial government a judicial pusi- 
tiou, in the liope and de>ire, that his 
eflbrts in ih<t position, adled to those of 
others, might resilt in a permanent and en- 
during .--tate government. That as a citizen 
unl olllcer, after a State government was inau- 
gurated aud estalilished he, as liefore, contrib- 
uted his per-jonal and official influence to sus 
tain and support it, and can now call to mind 
no act of h'S, relating thereto, either of official 
or unotficial nature, ;he o'lject, intent and de- 
sign of which was not to sustain or uphold ttiis 
government, which, perhaps, he vainly felt he 
had contribntej to create andbui d up 

Respondent would further state that at no 
time did he sympathize with those in their rev- 
oltitionary nets, who refused to meet other 
membev- of the General Assembly, on said 4th 
of July, 1866, in accordance to he procl imation 
of his Excellency the Governor; that, during 
the progress of the proceeding iiefore him, on 
sai I petition of habeas corpus, he so expressed 
himself, and lelt a sen^e of regret that a faith- 
ful and honest discharge of his (hitics as a 
Judire impelled him to the judgment he gave. 

While this respondent now claim- and insists 
that ihe opinion and judgment given by him as 
Judge afore- aid, upon said two petitions, and 
all his acts therein and therenntler, whether re 
lating to the law or the persons, were correct 
and in aconrdnnce with thi.' laws and constitu- 
tion, he will still insist that he is not to t)e con- 
sidered as guilty or innocent, acconiing to the 
supposed correctness or incor.ectness of his 
opinion of the law, as expressed by him ; for it 
would follow that error in o.dnion, however 
hone tly enter ained, might be a crime, and 
every Judge in the State would be liiible to im- 
peaciimcnt. for all commit errors in their judg- 
ment of the laws 

Respondent now, with an humble trust in 
Providence and a consciousness that lie has dis- 
charged all his official duties, to the best of his 
knowledge and aljilities; and that he has inten- 
tiouallv cummitted no violation of the laws of 
his land, no breach of the privileges of the 
House of "^'epresentaiives, no effort to defeat the 
operations of any department of the State Gov- 
ernment, and confiding in ti e integrity, inde- 
pendenee ani impartiality of liis Judges, and 
that they will hear patiently, and conscien- 



tiously flefei-mirie his case, unmoved by party 
spirit, prejudice or political motives, governed 
throughout by that moral and Christian rule, 
that each will render thai justice to tliis respon- 
dent, which he would wish to rccei\c, he sub- 
mits himself to their decision, con.-cious, that in 
a little time, his accusers, his judges and him- 
self will be summoned before an Omnipotent 
Judge, to whom each will be required lo answer 
for L. e deeds of this and all other davs, and 
hopes that himself and his judges, at th.h aw ful 
hour, can appeal to the rectitude and puritvof 
this day's work, with an a|)pjoving conscio'us- 
ness. Thomas N. Frazier. 

DKMrRRER.— And the defendant says, that the 
said Bill of Impeachment, and none of the arti- 
cles or specifications, tlierein set out, imd none 
of the al'egations and charges, in any of said 
Articles, or Sipeciflcations made and prepared 
against him, are oris, sufficient in law, tore- 
quire his disqualification, and removal irom the 
office aforesaid, of Judge ; and because he says, 
the judgment given by him. as Juilgo aforesaid, 
is in accordance with the laws and Constitution; 
and therefore, he demurs thereto, and pravsthe 
judgment of the Court. Thos. N. Frazier. 

1 he counsel for the State then made the fol- 
lowing 

REPLIFICATION. 

Before the Senate of the ftate of Tennessee, 
sitting as a High Court of Jniiieichnie.nt in 
tlie matter of Hon. Thomas N. Frazier, Judge 
etc., impeached. 

Keplifi ationof the Managers on the part of 
theHouse of RepresentaUves of the fcftate of 
Tennessee, to the plea of Thomas N. Frrtz'er. 
•Uidge of the Criminal Con tlortne county of 
Davidson, and State of 'i'ennessee. to the ar- 
ticles of impeachment again t him, by them- 
selves and of all the people of the state of Ten- 
ne-s-ee. i hey replylhat the said Ihomas N. 
Frazier is guilty in such a manner as he stands 
impeached; and that said J^anagers will be 
ready to prove their charges against him, at 
such convenient time and place as sh- d be ap- 
pointed for that purpose. "W.J. Smith, 

J. A. FUSON, 
Manag. rs. 

Senator Senter here offered an explanation aa 
to the manner in which f»enator Fnzier had 
been sworn. He said , hat he (^^enator Senter) 
hadconversed with Senator Frazier in refer- 
ence to this matter, ad thiit Mr. F. had said 
thtit he doubted the pi-opi-i.-iy „f hi* sitting in 
this court, but that at any rate he did not in- 
tend to vote on his orother's case. Under those 
circumstances, Air. Senter said he could see no 
impropriety in Senaior Frazier's sittting as a 
menilji r of the court. 

The answer of respondent and the replica- 
tion of the managers thereto having been filed 
the Senate adjourned. 



WEDNESDAY, MAY 8TH, LS07. 

The Senate met Wednesda morning. May 
8th, at 9 A. M., as a high C- urtof ii peachmenC. 

The court was called to order by Speaker 
F icrson, and the roll ha\i g le n called, 
twenty members were f und to be present 

The clerk t en read the journal of the pre- 
cedi g day whic'i was a proved, when the 
Pre ul' nt sta.ed that the court wa row ready 
to hear further argument on the q e tion dis- 
c'lsse I on T esday, a to allo^ting Senator B. 
Fraz er to retain his seat our ng this trial. 

The Hon Horace Maynard (St.ite counsel), 
then said: 

When we adjourne ' yes'erday, it w sunder- 
st od that such authorities as m'ght be found 
won d be triven t ^-day. By permission of the 
court I will present some of these anth rites, 
so as to give th counsel ^or the defense an op- 
liortunit . to meet them. 

Mr. E wing (respondent's counsel) here said 



16 



that he objected to having thrown upon him at 
the moment he (Ewing) was about to adiiress 
the court, authorities that he might not then 
be preparer! to answer. If those ; uthorities 
had been furnished him the preceding evening 
or the tollowing morning, he could have exam- 
ined them and been prepared to discuss tliera. 
But he wouhi notobjocD if Mr. RIaynard gave 
his authorities and lelt some other counsel to 
conclude 

Ml- Maynard— I beg to nssure the counsel 
and the court that there ii a disposition to 
treat this matter fairly. Of course, in present- 
ing the authorities, I should expect to show 
their applicability and their pertinence, and 
my views in regard to them. I 
Ijropose to do precisely what the 
coun el on the other sule intimated as 
he rose, to present the authorities and leave 
my associate to conclude the argument. [Mr. 
Ewing — certainly.] I am very well aware ihat 
to hand the gentleman a jiarcel of law books as 
he is about to rise is anything bnt legal fair- 
ness, and I incend to treat him fairly. The two 
questions before the court are first, as to the 
comiietcncy of Senator Frazier, and second, as 
to the power of the court to act in view of that 
competency or incompetency. The lirst ques- 
tion has hanily been controverted by counsel 
upon the other side. It is not seriously uraed, 
and 1 proume will not be, either here or else- 
where-, that a brother is a fit person to sit in 
judgment upon a bi-other's case. Jt is a spec- 
tacle that christian civilization has, I undertake 
to say, never aflorded, and one that I trust will 
not be exhibited ht-re for the first time m the 
annals of civilization. But it is supposed that 
under the organizatioa of this court it 
becomes a legal necessity tt:at cannot 
be avoided. This is "one of those 
things that the framers of the government failed 
to provide lor, that a member of the Senate 
must, because he is a member of tne Senate, 
necessarily be a component purt of the court 
and act as a Judge, on yesterday, in referring 
to a case that I b lieve was the last tried by im- 
peachment before this court, or the couit of 
Avhich this is tiie repre>enta'ive— the case of 
Judge Williams— it was stattd that one of the 
Senators pi-esented reasons why he should Vie 
excused and should not sit as a member of the 
court. Those reasons were that h>' was a party 
complaining of the act on with which the Judge 
had been charged. Members of the legal pro- 
fession are familiar with the facts, not only as 
they app-ar upon Cliis trial, but as they appear 
in inoie than one reporteiJ case growing out of 
matters similar to these. In the case referred 
to, the court set aside that man. or excused 
him from sitting. I need not say that this court 
has no power to excuse one of its 
members without a suflicient reason. They can- 
not do it because a member might wish to be at 
home attending to his privaie affairs, or bi- 
cause sittiiig on this court miglit interfere witli 
some personal matters, either directlv or indi- 
rectly. The court can excuse one oi its mem- 
bers only tor a legal reason, and the reason as- 
signed here is thai, the Senator was himself an 
aggrieved party. Suppose that instead of this 
being urged by the Senator himself it had been 
urged by the accused, would that liave made 
any diflerenceV The reason is the ^ame upon 
wliicb tne cuurt acts, it is that the Senator is 
incompetent, that he is disqualified, that he is 
directly coanected with the subject 
mattei'that they have to try. Suppose the de- 
fendant had made the objection, would the ac- 
tion of the court have been different, or would 
the exercise ol power been any greater than if 
he made the request hiuibelf? He 
Is ex:used not simply on a request, 
but for a reason. The reason is set out in the 
journal--to-wit: that he is directly connected 
with the matter about which the impeachment 
arose. The Senate did not hesitate to act, and 



so far as the report of the case shows, there was 
no serious controversy in the matter. In anoth- 
er case before the Senate of the United States, 
which occurred in 1803, upon the trial of Judge 
Pickering, who was impeached, convicted and 
removed from oflice, the question arose in this 
form. Between the time the articles of im- 
peachment had I een voted upon in the House, 
and the time of the trial in the Senate, three 
gentlemen had been transferred by their 
constituents from the House to the Sen- 
ate, and \*ere members of the Senate. 
It was objected that having been in the House 
at the time the articles of impeachment were 
there moved, and having voted for th' articles 
of impeachment, they were disqualified from 
sitting as members of the Senate upon the trial 
of the case. The report that I read irom is the 
Anna's of Congress, volume 13. The proceed- 
ings are for the year 1803. 

Early in the trial a question was raised as to 
the iiropriety of those gentlemen, viz: Samuel 
Smith, Israel Smith, and John Smith, of New 
York, who were i ere liiiring the last session as 
members of the House of llepresentatives, and 
voted here upon the question for impeaching 
Judge Pickering, sitting and voting as judges 
upon the trial. 

JNlr. Smith, of New York, wished to be ex- 
cused. Mr. S. Smith declared that he would 
not be influenced from his duty by any false del- 
icacy; that he, for his part, felt no delicacy upon 
the subject, the vote he had given in the other 
House to impeach Judge Pickering, would have 
no influence upon him in the court; his constit- 
uents had a right to his vote, and he would ni t 
by any act of his, deprive or consent to deprive 
them of that right, but would claim and exer- 
cise t upon this as upon every other question that 
might be submitted to the Senate whilst he had 
the honor of a seat. 

Upon the vote, it was carried by the usual 
majority. 

This precedent settles two principles, first that 
forming and expressing an opinion about a 
case is no disqualification, even when it is 
formed oflicially, or semi-judicially at least, as 
by a member of the House of Keprtsentatives, 
the grand inquest that found the impeach uient. 
That works no disqualification. In the second 
place, it settles the question as to the power of 
the Si iiate to decide upon the question whether 
tne member was com peteni or not. It was a 
qui stion that was passed upon, and was con- 
sidered within the power of the Senate to de- 
cide, one way or the other, and they did decide. 
In the report of a trial upon impeaciiment in 
the State of Kansas— I have not that report 
lying by me now — it appears that several 
changes were made in the court by reason of 
the d squalifieations of n:t mbers alter the court 
hail been formed, in accordance with the jiower 
exercised by the SL-nate. Every court, every 
organized body, has lull and completK power 
over Its own rnember.-. It is necessarily so. IC 
is a 1 art oi the power of se.f protecnon which 
is an inherent el; raent in every organic body, 
every Legislature, every cnurl; of justice, it 
belongs t>j it and perta'ns to it. But it is said 
here that the Constitution of the State 
of Tennessee provides that the Sena e shall 
try cases of impeachment. I hat is true, but 
does it C' ase to be a Senate beciuse one mem- 
ber or two members m-" v be pesonally disqual- 
ified? Does it ce se to be a Senate because the 
entire number of twent> -five Senators are not 
present? It is the Senate Mhen the organic ot- 
ficers, the Speaker, the Clerk, etc., are in their 
places, and when two-thirds of the Senators 
are in their seats. Upon the subject of the 
competency of this Senator to vote and to act 
in this case I will refer to page 78 of Mr. Jefl'er- 
son's Manuel of Parliamentary Law, a work of 
i recognized and admitted authority. [The 
I speaker here read from the man- 
I uel, Showing that no member could 



17 



be present when a bill directly aflfecUng 
him was to be voted upon, or any other ques- 
tion decided in which he was previously inter- 
ested. The member, however, had a right to 
speak m ex<-ulpation of himself, but m st 
withdraw when the vote w;is to be tal^en. It 
was asserted that it wa^ for the honor of a leg- 
islative body to adhere strictlv to this rule] 
The spealier continued: That is the general 
principb' which pervades all jiroceedings in a 
legislative body. A member shall not act in a 
matter in which he himself is concerned. We 
are tolii tliat common decency, not delica' y, 
but the rules of decmoy, the fundamental 
princiide of the social coi pact which denies to 
any man to be a judge in his own cause, is a 
rule immeraorialiy observed, and ought to be 
stiictly adhered to. Why, it was intimHted on 
yesterday that the statutes found in the Code 
were all "the governing rules on this subject 
The rule laid down in the Code is simply the 
st.atement of the common law as it stood, to use 
the language of Thomas Jetl'erson, from time 
ii:i memorial, and has been observed so far Ijack 
that when we look for its origin we find it in 
the law Latin of an earlier and, it may be, a 
less enlightened age. The spectacle where a 
broi her shall sic up! n his oath in the case of a 
brother, where he shall be comnelled to pro- 
nounce sentence of condemnation against that 
brother, is shocking, monstrous; it is abhorn nt 
to every sense of propriety and ever\ principle 
of humanity that is implanted in the human 
breast. Toe only wonder to me in this case is 
that the objection had not been raised either 
by the b other sitting in ihe Senate 
or by the brother sitting at the 
bar, and that it should have been left to be pre- 
sented on the part of the management in this 
case. Jtisa violation of every principle of 
common law, of our common nature, and is 
simply a scandal to a legislation and to all 
judicial proceedings. This is a court. These 
men who sit before me are Judges. It is the 
highes' court known to our laws, a court siiting 
under the coustitution, and sitting » itli poi'. er 
and authority that transcends the ordinary tri- 
bunals of the law. For this I cite the 63th No. 
of the * edtralist, commenting upon 
the constitution I will read a few words. 
"A well constituted court for the trial oi im- 
peachment is an oliject not moie to be desired 
til n ditlicult to beobtined in agovemuK^nt 
wholly elective The subject of its jurisdiction 
are those offenses which proceed from t e uiis- 
conductof public men. or in other w ords. from 
the abuse or violation of some public trust. 
They are of a nature which may with peculiar 
propriety be denominattd^o^jYicai!, as t' ey relate 
ch eliy to injuries done immediately lo society 
itself. The prusecutiou oi them, lor this rea- 
son, will seldom tail to agitate the passions of 
the whole community, and to divide it into par- 
ties, more or less friendly or mimical to the a'- 
cused. In many cases it will connect itselt with 
the pre-existing factions, and will enlist nil 
th ir animosities, partialities, influence and in- 
terest on one side or on the other; i<nd in such 
cases there will always be the greatest danger 
that the decision will i^e regmated more by the 
comparative strength of parties tuan by the 
real demonstrations of innocence or Vuilr. 
The delicacy and magnitude of a trust, which 
so deeply concerns the political reputation and 
existence of every man engaged in the admin- 
istration Oi publ c affairs, speak for themselves. 
The difliculty of placing it rightly in a govern- 
ment resting entirelv on the basis of periodical 
elections, will as readily be perceived when it 
is considered that the most conspicuous charac- 
ters in it will, from that circumstance, lie too 
often the leaders or the tools of the most cun- 
ning or the most numer us faction ; and on this 
account can hardly be expected to possess the 
requisite neutrality toward those whose conduct 
may be the subject of scrutiny. The conven- 



tion, it appears, thought the Senate the most 
fit depository of this important trust. Those 
who can best discern the intrinsic difficulty 
of the thing, will be least hasty in condemn 
ing that opinion, and will be most inclined 
to allow due weight to the argumen*; 
which may be supposed to have produced it. 
What, it may be asked, is the true spirit of the 
institution itself? Is it nol; des gned as a 
method of national inquest into the conduct of 
public men? If this be the design or not, who 
can so properly be the inqiiisit''rs ( ■!• th*> na- 
tion as the representatives of the nation them- 
selves? It is not disputed that the power of 
origin ting the inquiry, or in other words, of 
preferring the impeachment ought to be 
lodged in the hands of one branch of th • legis- 
lative body -. w 11 not the reasons wh;ch indi- 
cate the uropriety of thi- arrangement strong- 
ly plead for a'l admission of theolher branch of 
tnat liody to a share of the inquiry? The model 
from which the idea of ihis institution has been 
borrowed, pointed out that cours-, to the con- 
vention. In Great Britain, it IS the province of 
the House of Commons to prefer the imp' ach- 
nient; and the House of Lords to decide U'on 
it. Several of the State constitutions have fol- 
lowed tie example. As well the latte" as the 
former, eem to have regarded the practice of 
impeachments as a bridle in the hands ot the 
legislative body, upon the execmive servants 
of the government. Js not this the true 
light in which it ought to be regardei? 
Where else than in the Senate could have been 
found a trihunal sufliciently dignified or sufU- 
cientiy independent? What other body would 
be likely to feel confidence enough in its own 
situation, to preserve uiiawea and uninfluenced, 
the necessary impartiality between an individ- 
ual accused and the representatives of the peo- 
ple, his accusers? Could the Supreme Court be 
relied upon as answering this description? It 
IS much to be doubted whether the members of 
I hat tribunal would, at all times, be endowed 
with so eminent a portion of foititude as would 
be called for in the execution of so difficult a 
task; and it is still more to be doubted. Mhether 
they would possess the degree of credit and 
authority which might, on certain occasions, be 
indispensable towards reconciling the people to 
a decision that would happen to clasli with an 
ai'cusation brought by their immediate repre- 
sentatives. A deflcency in tie first, would be 
fatal to the accused; in "the last, daugeious to 
the public tranquility. The hazard in both 
these re-pects could only be avoidetl, if at all, 
by rendering that tribunal more numerous 
than would consist with a reasonable attention 
to eciaiomy. The necessity for a numerous 
court for the trial of iajpeachments is equally 
dictated by the nature of the proceeding. This 
can ueverbe tied down by such strict rules, 
either in the delineation ot the ofl'ense by the 
prosecutors, or in the coHStruction of it by the 
judges, as in common cases, serve to limit the 
discretion of courts in favor of personal secu- 
ritv " 

l^his court is therefore clothed with larger 
powers, and is not tied down by the rules pre- 
scribed for oflenders before the ordinary courts 
of the country. Both in our own State and in 
other States, the court has exercised the power 
either to determine the qualifications of their 
own members, t_. admit them or to exclude 
th m, and that is in conformity with tlie reason 
of the case, with the justice of the < ase, and the 
propriety of the case, the decency of the case, 
in immemorial observance. Surely there ought 
to be no question as to what this court my do 
in this matter. I mean what it can legallyand 
rightfully and properly do. How ought this 
power to be exercised? You are asked, Mr. 
President, ami your associates, to say whether 
a brother can sit here and furni part 
of your court and be compelled day 
after day as a member of the court 



18 



to pass npon the conduct of another brother. 
It )s worse than seething a kid in its mother's 
milk. A brother offended is harder to be won 
than the taking of a city Recognizing that 
tie,strong,biudii)g, cohtsive between th^se near 
relations, if once bioken, it is broken forever. 
Shall you say that a case affecting the interest 
of a slave will isqualify thu master from set- 
ting in judgment in a case, will you say that 
a man, in a cdse in whicti the question involved 
come home to his own heart and liis own fire- 
side shall not be allowed to sit. but compelled to 
sit? Ihatisthe argument made, ihe argu- 
ment is that he is compelled to sit. There is no 
■way to avoid it, that he iS placed by the inex- 
orable and the irresitable law of the (State of 
Tennessee, the organic law of the constitution, 
and that he cannot be taken away. It is the 
argument that we had on yesterday; whether 
we \' ill have it to-day I know not. 
If that is the argument, then it be- 
hooves us to look ano see -whether our 
con^titutlOn was bO framed, and whether it was 
conteni()laied that any membei of the Senate, 
no matter what miglit be his relations to the 
case on trial, no matter whatever he might be 
to the prosecuting party, no matter whether he 
■was the most near relation to the accused, that 
he is eompelled to sit, to pass upon the case, be- 
cause the power to excuse, the power to grant 
permission to withdraw, is the power to require 
It upon a case made out. as I have shown, 
this court has no power as a matter of favor or 
obligement to release one member or another. 
They might thereby break up the court entire- 
ly. .Nor has any member a right to witlifiraw 
himself except for a hgal reason. It is the duty 
of the loiembers of the Senate to be here, and if 
they are qualified to sit during the tiial and to 
pronounce a decision which in their judgment 
and conscience, they believe to be riglit, it is 
their business and tlieir duty to be here. It is also 
their duty to see that their fellow Senators are 
here, and that they are not excused or permitted 
to reti. e except foi suflicitut reasons, l>gai rea- 
sons, grow ng outof their reia'ions to ttiecae, 
or it may be tueir bodily infirmity. With these 
views, Mr. I'resiilent, I submit tne proposition 
that, ill ihefirst place, tiie Senate has complete 
and ample power over this ques-tion. to say 
whether his Senator is qualified c not; and in 
the second place, 1 hat in the exercise of that 
power it is not seriously col tended that the 
Senator is nisqu'lified from being merely a 
member of the Senate. The precedents from 
the Kansas case have been handed to me. I 
ha', e not baa tine to examine them, but I will 
hand them to the counsel. I will not make any 
comment on this case, any further than to say 
that I understand from my associate counse 
that such are the rulings in that case. 

Mr. Ewing (respondent's counsel) then con- 
tinued the argument. He said: 

May it p'ease the court, I had supposed that 
alter the adiournment yesterday, and the lull 
opportuniiy that has been given to examine 
precedents "and authorities upon the question 
that is now presented to the cenate, that some- 
thing miglit have been produced on the part of 
the prosecution that would have borne at least 
the semblance of authority upon the question 
now before the court. I must say, however, 
that I .Tin somewhat disa]. pointed ihat there has 
been nothing produced that will even require, 
as I apprehend, the tiouble of getting rid of 
plausibilities in the av ay of author! y or of argu- 
ment, i'lie gentlemen for the prosecution have 
as yet waived or evaded the propriecyof inti-o- 
ducingtliis question at this stage of the pro- 
ceeding?. It is sometliing new tome, after a 
court is constiiu ted, after the members of a court 
are sworn, alter they have taken their 
seits ujion the bench, after no objectisn 
in\imin6 has been presented to any member of 
the court, and proceedings have beeu com- 



menced, or are about to be commenced, that an 
objection should be taken to a member of the 
court, which objection was fully known and 
fully appreciated by the managers on the part 
of the .-tate and by ihe^Kepresentatives of the 
House of Representatives. Ii seems to me that 
it is somewhat late in the day to come with this 
objection, even if it were valid and if there 
were anything in it. It c 'nnot be said that 
the counsel for the State were taken by sur- 
prise, that they have just now learned that Dr. 
Frazier was amemberofthis court and abroth- 
er of Ihe respondent, i he matter was taken into 
consideration in the constitution oi this court, 
for the court is constituted, not of the Senate, 
but of the members sworn to try the cai se Dr. 
Frazier was known, as appears either by the 
record or the statunents of Sena ors, to have 
been the brother of this defeudent. A ques- 
tion in regard to the propriety of having him 
sworn upon his own part and upon the part of 
the prosecution and upon the pai-t ot the Senate 
was pioposed, and the question was determined 
and he was swoi-u; ana now we have, lor the 
first time, an objection maile to liis sitting as a 
member of the court, or to his being considered 
as a member of the com t upon the final vote. I 
say the objection is too late. It should have 
been made at another stage of the proceedings, 
if there were anything in it. This court consti- 
tuted itself Whether in its constitut on objec- 
tion could be made by the parties prosecuting 
or by those representing the deftndant, is a 
question which I do not proiiose to discuss, nor 
is it of any importance; but it might well have 
arisen if the objection hud been made at the 
proper time. It is known to every member of 
this court, whether a lawyer or not, that in 
pleadings in courts of common law, in courts of 
equity, in courts of every description, there is 
a certain lorm of proceeding, and that certain 
objections ciin be made at one stage that cannot 
be made at another. When we proijosed to 
discuss this whole matter, we were held to the 
rules ot pleading. If we demurred, we were to 
take the consequences of tiiat cour-e. If we 
should file an anwser, we were to be understood 
as having waived our right to demur, unless a 
demurrer might be contained in an answer. If 
there is objection to the jurisdiction of the 
court, or any part of the court, or aay member, 
that objection is the first to be made. An ob- 
jection to the jurisdiction, an objection to the 
power to try on the p.irt of the court, or any 
member of the court, is the first objeetion to be 
made. If this objection be not made at the 
threshhold. it is waived. If, then, a plea to ihe 
jurisdiction, or an oojet^tion to the juiisdiciion, 
or an objection to the court is waived, we pro- 
ceed to another stage of pleading, and then if an 
answer be tiled demurrer is waived, and so we 
proceed, i hen we come to make amotion in ar- 
restof final judgment by the court. I insist, 
then, according to all the rules that govern 
every where, that the objection now made comes 
too latv!. The cour. is not invalidated by having 
a member upon it who might have beeu objec- 
tionable if tne objection had been made at the 
proper time. It still remains a Court of Im- 
jjeachraent, a quorum exising without the aid 
of the member who is considereti entitled to a 
seat as a member. The court does not invalid- 
ate the proceedings of those membei s who are 
propeily members of the court. It would be a 
nrllity, at all events, if some one was sworn 
who was not, and Ought not properly to have 
beeu sworn if objectfon had been made, to have 
beeu allowed to sit as a part of a Court oi Im- 
peac'ment. liut may it please the court, Ido 
not wish to rest alone our defense to this ob- 
jection to Dr. Frazier merely upon the ground 
"that the objection has been made at an 
improper time. I say, sir, that there is no law, 
either in immemorial usage under the cemmon 
law as derived f( oni our fathers in Great Brit- 
ain, under the statutes of the State of Tennes- 



19 



sec, under precedents of impeachment, under 
the Coni^titution of the State of Tennessee, by 
which this mi-mber can be rejected, excluded or 
expelled, not as a Senator, but as a Judge, from 
participating in the deliberations and taking 
part in the judgments of the court. I do not 
Ijropose to try this cause, may it please the 
court, upon speculative vagaries, but Iproijosc 
to try it upon the law of the land. I admit that 
precedents may be introduced from otlier im- 
peachments, and they will be given a respect- 
ful hearing by this court I admit, sir, that in 
the absence oi' cnstuticnal provisions, in the ab- 
sence of statutory provisions, we are governed 
by the common law as it is given to us in books 
or decisions and precedents derived from other 
times But I insist that where the Constitu- 
tion of the State of Tennessee has spoken au- 
thoritatively, has spoken definitively, we are 
governed by that, and that neitlier the common 
law nor precedents of impeachments, nor stat- 
utes not authorized by the Constitution of the 
State of Tenn' ssee, can be adduced as the basis 
and ground of our action. I say that the Con- 
stitution of the State of Tennessee has under- 
taken to define who shall be a court of impeach- 
ment, of what that coxirt shall consist, and that 
it is conclusive that it neither has been at- 
tempted to be altered, nor has it been altered. 

lowing to the length of the debate, we are 
here compelled to close our report. Jt will, 
however, be continued in our next issue.] 

The following is the conclusion of the speech 
of Mr. Ewing (respondent's counsel) made on 
the question of aliewin^ Senator B. Frazier to sit 
in the court: 

We, sir, have not introduced any statutes 
here as the rule by which this court is to be 
governed in the control of this impeachment. 
We have had them introduced on the other 
si<ie. A- I understand it, the doctrine in re- 
gard to the aiimissibdity of a juior, ot a mem- 
ber of a court, for the purpo>e of trying any 
case chat may be jjiesented heCore it, has been 
introduced on the other side, and an analogy 
has lieen attempted to be run between the stat- 
utes providing in regard to judges of superior 
and interior courts to bear upon this Court of 
Iraj^eachment. If any statute has been passed 
in tlte State of Tennessee, in accordance with 
the constitution, that cxn be brought to bear 
upm t^li^ Court of Impeachment, we are under 
obligation to obey it. And if no statute has 
touched this que -tion, if no statute can touch 
this question by the obligatory direction of the 
Constitution of the Sta eof Tennessee, then it 
is vain lo look into statutes for the 
rule of our conduct. Then, may it please 
the court, how do we find this question that is 
now presented to us in the common law ? They 
have had an opportunity of examining, under 
the common law, who may and who may not be 
judges. Waiving tbe constitution for the pres- 
ent, how far hive they been able to reach? 
Thus far and no farther Now I say, without 
Jear of contra' liction, for I have examined au- 
thorities SMine as well as the gentlemen, though 
T h ive brought no books;— I say that 1 assert 
without feu r of contradiction that there cannot 
be found in any Iwok upon the common law 
any principle upon whicli a brother can be ex- 
cluded from sitting as a judge of hi-, brother. 
They tell us it is against common decency ; they 
tell us it is against Christian civilization; i hey 
tell us that it is indelicate. I shall have a word 
to say about tliat before I am done, and we 
shall >'ee wtiether this man stands iri an attitude 
that will disgrace hioj us a man of delicacy, as a 
man of honor, as a man of high tone and 
proper dignity, whether he stands in an 
attitude that demands that he at least should 
make <;very exertion to rid himself of this bur- 
den that lias be,eu imposed upon him. I say 



then, sir, that the common law contains no 
principle by which any man can be excluded 
from sitting in a court of justice unless il be in 
his own cause Xo man can be a jiidg^' in his 
own case. That is an old principle of the com- 
mon law, and it is a just principle. So far the 
common law has gone, but it has gone no fur- 
ther. If he is interested to the amount of a far- 
thing in a pecuniary point of view, he is not 
authorized to adjudge in that cause as against 
the party from whom he claims. All other ob- 
jections on the score of interest, on the score of 
relationship, on the score of bias, on the score 
of ))rejudice,or of party feeling; all theseobjec- 
tiots are the result of statutory provisions and 
of them alone. Lord Coke has laid down this 
principle, that no man shall be a judge in his 
own caus", but he has gone no (urther. 
Blackstone lays down the principle that 
a man cannot bi a judge in his own 
cause provided anybody else can be a jmlpe 
in the cause presented, but he goes no fuither. 
The doctrine as laid down by CoUe, has been 
supported in various decisions in the courts of 
the United States. So lar we admit, that a man 
is excluded from sitting as a Judge, and no 
further. Now I call for a decision of any court 
of respectability in which, where there is no 
statutory provision, no constitutional provis- 
ion, no man could be excluded either a-- a juror 
or as a Judae, for any otlier cause than that he 
is personally interested in the result in a pecu- 
niary point of view or in some other purely 
personal point.- We are not under the neces- 
s'ty, may it please the court, of introducing 
authority. We could introduce authorities, 
but the burden of producing authority is upon 
the other side. They have to show that this 
man who is sworn as a Judee in this cause, 
and who now formally, at least, constitutes a 
partofthis court, is an incompetent trier of the 
question before the court. But I rest here until 
auihority upon that question can be produced. 
When we come to the subject of Judges and ju- 
rors in the ordinary courts, weflnd statutory au- 
thority in abundance. Turning to the code upon 
the subject of jurors, we have the objections 
that may be made to a juror. The Code of Ten- 
nessee provides that either party to an ac ion 
may challenge any party who is incompetent, 
or any person who has a suit jiending for trial, 
or who has an adverse interest, or when either 
of the parties is connected with the person 
having a suit, either by affinity or consanguin- 
ity M'ithin the sixth degree. All these tilings 
are to be found in the statues. A provision has 
been made in the constitution (article 6, section 
11.) in regard to .ludges ot tne Supreme Court, 
and of the inferior courts. "No Judge of the 
Supreme or inferior courts shall preside on the 
trial of any cause in the event of which he may 
be interested, or where either of the parties 
shall be connected with him by affinity or con- 
sanguinity, within such degrees as may be pre- 
scribed by law, or in which he may have been 
the counsel, or n which he may have presided in 
any infei-ior court, except liy "consent of all (he 
parties." The provision 's complete and 
plenary in regard to all the Judges of the courts 
of the State of Tennessee, from the Supreme- 
Court down. Now. m this same constitution we 
have a provision in regard to the trial of im- 
peachments, and in regard to how a Court of 
itopeachment is to be constituted. If it were 
thought proper in regard to a Court of Im- 
peichm'iit to exclude a member of the Senate 
upon the score of bias, upon the score of inter- 
est of any dscription, upon the score of rela- 
tionship, why, in the name of all that is reason- 
able, have we not a provision in regard to the 
constitvition of that court similar to (he provis- 
ion in the constitution in regard to tl e Judges- 
that are appointed and set apart for th(; trial of 
ordinary catises. The Bish Court oi- 
impeacnmont is a pecviliar court; it is a cm 
stitut onal court; it is not like those in 



20 



England. It is a court that is made by the con- 
stitution, and sits by virtue of nothing less than 
the vrovisions of the constitution. It- is pro- 
vided that all impeachments shall be tried by 
the Senate, when sitting for that i)urpose. The 
Senators shall be upon oath or aftlrmation. No 
person sball be convicted without the concur- 
rence of two- thirds of the Senators sworn to try 
the otlioer impeached. ^Jow, 1 ask, m;iy it 
please the court, who constitutes the court? 
The Senate of the State of Tennpssee. What 
constitutes the senate of the State of Tennes- 
see? A quorum of Senators may constitute the 
Senate of the State of Tennessee. The members 
sworn, and those alone, constitute the court, to 
adjudicate the question of guilty or not guilty, 
and all collateral qestions. Can any member of 
the Senate, until he be sworn, be allowed to 
vote on the final question that may be present- 
ed? Unquestionably not. Cannot every mem- 
ber of the Senate be sworn? A man is not a 
member of the Senate who resigns. A man is 
no longer a member of the Senate who has been 
expelled, but a man is part of the Senate so 
long as he remains a Senator, not resigned, 
not expelled. The members sworn must try 
the cause. Evei'y member of the Senaie has a 
right to be sworn, and he may demand to be 
sworn. He cannot be excused from being 
sworn if he remains a member of the Senate. 
Mr. Campbell, upon the trial of an impeach- 
ment case may have applied to be excused, and 
the form of an excuse may have been adopted 
in ret' ard to him. He may have been allowed 
to stand by; he may have been allowed to say 
nothing; and if L)r. Frazier were a member of 
the 1 ourt, the court might say that he should 
I)e excused; but it would be, not meaning any- 
"thing disrespectful to the court, a brutum fulmen, 
he would still bearaetuberotthecourt. You can 
; resort to no statute, you can resort to no com- 
imon law, to no precedent of impeachment that 
• canridj'ou of an obligatory duty that is im- 
posed upon yoti by the plain provision of the 
' Constitution of the State of Tennessee. Why, 
let us see what would be the result of al- 
; lowing objections of this character to be made to 
the Senate. Here are questions presented for 
. trial before the highest court in the State If 
exceptions of this iiind were allowed, by which 
; the Senate might be reituced below a quorum, 
it requires seventeen members and twenty 
member- have been sworn, and but twenty- 
one, 1 apprehend, can be sworn. Four or five 
men might very well be excluded if we were 
' to adopt a statuto y principle upon this sub- 
ject; then we are to come down to the statute 
and to say that no min connected in the sixth 
degree with the impeached party stall be al- 
lowed to sit in this court. And where are we 
to stop? Can you arbitrarily say upon your 
ideas of decency, of nature, of reason, of 
Christianity, of civilization, that a brother 
shall not try the cause of a brother, but that 
his cousin may? I have known it. in my 'ife, 
to be the case that a cousin stuck closer than a 
Drother, and that a cousin would be as much 
influe ced by bias, by family pride, by 
the endeavor to save from ignominy and dis- 
grace a member of his family, as a brother, 
■would bo inlluencpd. You have no authorit.v, 
then, but the statute of Tennesse . And alone 
upon the statutes of Tennessee can you found 
yourselves, for you cannot go to the cominon 
law. There you have merely the principle that 
a man cannot sit during the trial of his own 
cause. Then when you undertake to adminis- 
ter your doctrines of Christian civilization, and 
your ideas of decency, you must have some re- 
sort by virtue of analogy. What analogy, 
then? The analogy ol the State of Tennessee, In 
regard to jurors and to judges, and that ex- 
cludes every one, so ftir as relationship is con- 
cerned, to the sixth degree. Now. let us see 
how we are involved still further when we once 
introduce that idea of analogy between the trial 



in a court of impeachment and in an ordinary 
curt. We have to run the analosry out We 
have not the power, as I contend, to say that a 
high Court of Impeachment upon the questions 
before us his the power to say that a brothen 
&h 11 not sit on the trial ot a brother, and that 
wo can go no further. We must g) ti the bot- 
tom of th s question. But then when we con- 
sider the doctritie of analogy we must go to the 
bottom. I think it is better for a brother to be 
allowed 1 1 sit m the cause of a brother '• ban ior 
aminv.'ho has stood at <la^2ers' po nts, for a 
lif time oerhaps, to be exclude t. Whatc ance 
would there be— I might all but mention names 
--fof a man who was brought here as a de- 
fendant, i.o be tried upon his honor, his digni- 
ty, his charsicter, and his future life, perhaps. 
What degreeoi lairness could beexpected irom 
one who had sto'^d in relation to him as a mortal 
enemy? J) e would be excluded, if we ruu the 
analogy. Then again, if a man has foriiieil or 
expressed an opinion, j.i d t might beth^tt even, 
in courts of impeachment men had formed or 
expressed an opinion bei> re the courii sat. 
Suppose that in high psrty times nieu looked 
up;m each other as personal enemies ; suppose 
that one side looked upon i he other its oppressed; 
suppose one party was revolutioua y and 
another was tyrannical, and they stood thus 
front to front, ready to do battle not o ly in the 
halls of legislation, but on the bloody field it- 
self. Well, shall we run the analogy out, and 
take the statute? We have nothinn else. I re- 
peat, we have no common law, we have no 
precedent. We have the consiitutinn ami w'C 
have the analogies of the statutory provisions 
in reirard to ordinary courts. Novv when we 
commence the analogy, I ask if they can arbi- 
trarily say that a brother shuU not try his 
brother, but a cousin may, or a man who 
stands as a personal enemy or a political 
enemy, may try the man who stands in the 
position of liis opponent, or who stands ready to 
take his life. If the Senate fa- Is from any cause, 
justice goes without its proper stipporter-. If 
you cannot try this man in the Senat' you can- 
not try him anywhere. It has been thought 
proper to brin^ himbeiore a Court of Impeach- 
ment. Now when they attempt to run these 
analogies, we are obliged to see wh tt has been 
done in reference to tne other cases, in order 
that the analogy may be of value. If a member 
of the SupremV Com t is rel.ited to anc one in 
the proper degree, or if he is Irom any caise in- 
coiripetent to try the ease, there is a uiode 
pointed out bv which he nviy be displaced, and 
another :idjuc\icator appointed; but there is no 
substitute for the State of Tennessee. If you 
tail, all fails. If he can be warded off, then this 
man may be, and that man may be. and another, 
until We are reduced i elow a quorum, and no 
provision is m ide for the tria' of the highest of- 
fender. Then, the Constitution ot the Suite of 
Tennessee looked to the (act that the Senate was 
the sole power before which high cinnes and 
misdemeanors could properly be adjudicated. 
Thei' made the Senate, risking the consequen- 
ces. Something has to bu ri-ked in the 
constitution ot all courts. It might have been 
that no provision would have be. n luad-^ for a 
judge not to sit in the case of his brother, and 
if no i)rovision had been made, we would have 
been driven of necessity to fake as a judge the 
brother of the defendant But they have said 
to themselves, here is a Court of Impeachment 
that we can refer this matter to; here are Sen- 
ators coming from all points of the State; here 
are men who are supposed to act from high 
motives, upon proper principle , to be ani- 
mated by pi oper prrncipies, to be goverueii by 
asenseof justice, and it is referred to these 
men from every part of the State as a right to 
be represented both in this court by its very 
constitution as well as in the Se.nate, particu- 
larly when it passes upon the subjects of legis- 
lation. I say that a man is not to be adjudged 



21 



by members from "West Tennessee, or Midtlle 
Tennessee, or Kast Tennessee, but he is to be 
adjudged by the Senate of the State of Tennes 
see assembled and sworn, a quorum of the 
Senate of the State of renness^ee, and that the 
deteudant and the prosecution have a 
right ta representation Irom the various 
parts of the State as mucli in a Court of 
Impcacliment as in legislation. I s-taie this, 
may it please the court, in accovdance with con- 
stitutioiiiil provisions. But suppose tbere was 
no limitation to the right of a mem' er to sit in 
the Supreme Court on the case « f his brother. 
Could not the other two members exclude him? 
They have to Iook to the law. If they choose 
they may retire from the bench. You have no 
power to exclude a member of the Senate who 
has been sworn. You may e.^pel him as a 
member of the Senate, but you have no power 
to expel him as a member of the court. Sup- 
pose you VI ere to expel him, suppose he were to 
resign, suppose he were to die. it is still obliga- 
tory on the court to adjudge that two-thirds of 
those sworn are necessary to a ( onviction. Be- 
ing once sworn, being a member of the Senate, 
not having resigned before he was sworn, when 
he Is worn he is a part of the court. Now we 
will suppose that Dr. brnzirT would retire. 
Suppose lie should say I ask to be excused and 
you have now no power to exclude a meniber 
of the Senate who has been sworn. You minht 
expel him as a member of the senate but you 
have no power to expel him as a member of the 
court. 

Mr. Trimble (State counsel) then replied to 
the ai gument of Mr. Evving. He said : 

Mr. Speaker, I shall detain you as short a 
time as it is possible in discussing the questions 
before us. The question is upon the motion on 
behalf of the counsel on the part of the State 
of Tennessee, to exclude the Senator from 
Knox and Hoane fiom sitting as a member of 
this court. The first question is, is the member 
from Ivnox and lioanc, the brother of the im- 
peaoheii party, a ompetent Jutlge to sit in this 
court V That is the naked, nari-ow, simple 
question that is presented. Is a Senator com 
peteut to sit in a case of impeachment on the 
trial of his own brother, by auy law, human or 
divi'.e f The next question is whether the 
Senate may pronounce upon his competency. 
Those are the only two questions. May this 
Senate pronounce upon the qualilication 
of those who form a part of this Court 
of Impeiichment y is tlie majority of the Sena- 
tors, is the Senate, ajudge of the qualUcations 
of persons who pre-ent themselves tj lie sworn 
in as members of ths court? is not thai 
proposition self-evident? Does it neeil any 
arguniiut to establish that? The cinstitution 
makes the senate a Courtof Impeachment, and 
makes a quorum to consist of seventeen. A 
quoium of seventeen sittinar as a court, is acon- 
stitutional Senate and a constitutional court 
Now, where is the power to deciiie upon the 
qualifleations of those who present themselves ? 
Is it not a self-evident proposition that it be- 
longs w holly to the Senate, sitting as a couit? 
Assuredly it doe . Suppose an outsider were 
to offer himself here to be sworn as a Senator, 
and you ask for his credentials; he has none; 
are yoti not acting as a judge on the ca-e, and 
can you not exclude hm? Suppose memners 
come forward with credenials and ]>resent theni; 
prinui/aeie, they ar^ entitled to be members of 
the court. Is it not a question for this i ourt to 
decide whether the party shall be qualitied or 
disqualidf-d"? Assuredly it is. I shall not stop to 
argue tnose points. In fact the counsel on the 
other side advises that as a Court of Impeach- 
ment you are not governed by any mi-re court 
of law that has been prescribed, but y. u are 
clothed with the power of the common law, 
which is tr:e law of reason, of nature, and of 
justice. You are to be governed by that law. 



You will also be governed by your sense of duty 
and by your sound judgment in the enforce- 
ment of those rules; then 1 sliall rest on the 
supposition that this court is capable to de- 
termine the qualilication of members who pre- 
sent themselves to be sworn in as a ccmrt. 
There is another mere te<-hnical point which 
the counsel on the other side makes, which I 
will speak to first. Upon the adjournment of 
the Senate it was resolved that the Senate 
should meet and organize it- elf into a 
court for the purpose ol trying 
Ihomas N. Frazier. The Senators were pres- 
ent on that occasion merely to organize and to 
adjourn over to a luture day, at wliich time the 
trial was to commence. At that meeting of the 
Senate I was not present. I undevsiaii<l iliat 
the names of the Senators were calleil, and that 
they were sworn in. Perhaps aiiiong the first 
that presented themselves was the Senator Irom 
Knox and Koane, who was sworn in, and then 
the other Senators were sworn in as a court, 
and the court adjourned over. I understand 
the counsel on the oter si le to say that because 
the counsel for the State were not then present 
no objection was made to Senator Frazier Ijeing 
sworn in. [Mr. Ewing — I did not mention ihac 
he came, did not argue that he came and helped 
to make the court.] Mr. Trimble continued — 
That is the same thing. Well, suppose it had 
not been done. That is a mere technical point 
at best, but I think, one not very formidable 
to meet. He Avas sworn in. There was no 
counsel here on the part of the State. He was 
sworn in. Nvw what logic is there in the ob- 
jection raised by tiie counsel on the other side 
that he was sworn in, and that h cannot 
be got rid of? Was this rigiit or wrong? 
If it was right then, it is right now. Hut if it 
was an error, has this cottrt no poii'er to correct 
its errors? The whole proieedings of theco rt 
are in the heart of the court, and the court 
can correct its error. Why, sir, you have al- 
ready corrected a rule which you found to be 
wrong. By the Houseof Representatives there 
was a demurrer written out,ir net Ibrmally filed 
They got into an error, and got us into an er- 
ror. But they were relieved from that error. 
The court corrected that error, hut where is 
your authority, if this be an error? If the Sen- 
ator from Knox and Koane is disqualified, 
where is yotir authority that because he is 
sworn in he is oljliged to be fastened to his Si-at 
on account ol th;it wise rule of law ? You as- 
sert that if he was sworn in by error he is 
f.istened to his seat. Where i-i your authority ? 
By what son oi hocus pocus does anything of 
that sort occur ? I assert on the contrary, that 
whenever this court thinks it hasac^ed from 
inadvertence, or mi'-take or error, it isci^mpe- 
tent, like other courts, to correct its errors , but 
because, in the hurried in(!eting to orgainzs, 
the Senaior from Knox and lloane was sworn in, 
no counsel on the part of the State being pres- 
ent, this matt r was not attended to The Sen- 
aie o.eets again for the purpose of this grand 
trial, to vii dicate its own rights. Ttis involves 
a question or right and privilege in which the 
wliole State of Tennessee is interested. For if 
a petty judicial ofiicer can, by h'S petty flat, 
when the Legislature is assembled, break that 
body up, then the legislative branch of the 
Government of Tennessee is to be pitied. But 
this is a diversion. It is, however, a case ol the 
highest magnitude, iu' olvmg collision of equaif 
and independent departments of the govern- 
ment. The officer who is now impeached was 
warned ai;ainst the step he was taking, and he 
was told that of necessity there would be a col- 
lision between two sovereign departments of 
the government. Well, the hour lor the meet- 
ing of the court arrived; the court assembled, 
the members to jk their seats, and the Senate 
was organized. At the very threshold it was 
found that the Senator from Knox 
and lloane did not mean to challenge h ms If. 



22 



In this case, which is one of magnitude, the 
com sel lor tlie State raised the point of his 
cornperency to sit and try this case, in which 
thi; wliole people ot the StJtte of Tennessee lire 
inturested God and nature requires that the 
Senate should be sitting here. M'^w, i-^ Senaior 
Frazier competent; to sit or not? Tha': is the 
question. It is a question of common law. The 
gentleman on the oi her side said, and I thaak 
him for the admission, that \ ou are governed 
by the common law. This isin act;ordance with 
reason, and tlial. piinciple of justice which re- 
sides in the hearts of all men. The Senate is to 
exerc se a sound discretion. They are clottied 
with the power of the common law, and are 
supposed to act impartially lor the public weal. 
The counsel on the othei- side say we have pro- 
duced no authority. Yesterday it was under- 
stood thatin view of the ma,gnitude ot the ques- 
tion each side were to And what authorltes 
they could, and produce ihem here this morn- 
ing. The gentlemen on the other side have 
lound plenty (). autiiority, but they do not pro- 
duce it They have gireu us no autiiority. 
They atiirm the competencr of Senator Kra/.ier 
to sit as a member of this court Where is 
your authority now"? Where is your common 
law that a brother may sit to try a brother or a 
father a son ? You say that we don't pro- 
dui e any authority. It is creditable to human 
nature that we produce none. 

[Mr. Ewing — There is incoinpetency ] 

Mr. Trimble— Y^ou say we must bring author- 
ities here to prove that he cannot sit at all. I 
say it is creditable to human nature that we 
are able to bring no authorities. Why? Be- 
cause it is the flrst case that has ever occurred 
iu England or America where a brother pre- 
seated himself and insisted upon sittin r in the 
case of a brother. No such case is to be found 
upon record, I apprehend. I have searched to 
ficd the particular authority ,but it was not to 
be found. ijWhy? Beeause such a question has 
never arisen before. 

[Judge Brien here said — No one ever thought 
proper to raaki:! the objection, because the com- 
mon law did not exclude. 1 

Mr. Trimble — I take it that history presents 
noexamnle where a man ever insisted on sit- 
ting on the trial of a brother, wlieie a father 
ever insisted on silting on the trial 01 a son In 
all your reading of history liave you ever read 
of su'h a case? Is it not cieilita'ble to human 
nature t!iat there is no such case? Tliis is tlie 
fir.-t one. 1 think it a tlecided cO'npliment o 
human nature that no authority can be found 
on this quest on. Bur yjiu are governed by the 
rules ot common law, rules founded in nature, 
and in principle. Are not these rules of 
common law instinct with reaon and 
Willi wisdom and propriety? Th s is 
the legal atmosphere we are breath- 
ing. Now, let us look into this thina:. 
What is common law founded on? A Knowl- 
edge of the human heart, its virtues and its m- 
flruiities both. I thank the gentleman on the 
other side for his admission. He admitteif 
tliLit common law interest excluded a man. He 
said that this was not a mere technical rule 
of law; but that the common law ex -luded an 
i' tcrested man. Upon what principle is amnn 
expiui ed? l^et us go to i ha root of the ques- 
tion Let us be radicd on the occasion. Whut 
js the principle tor which a man ■* excluded 
where his interest is cou' erned? Theinflrmity 
of our nature is the re;ion which excud s a 
man at common la'.v irom sitting in his own 
case. Now, does not the same wise rule and 
j>rincip e exclude a br.ther tram sitting in a 
broiher's ca-^e, or a father irom sitting inason's 
case? It is creditable to our nature that we 
have these yearnings of natural afl'eetion. But 
then we know ag^dn that a broiher cmnot sit 
in a brother's cause and administer justice. It 
/is impossible; our nature does not admit of it 
ilf pecuniary interest excuses a man, your mere 



material man who is governed by material in- 
terests, does uot our natural sffection which 
is imidanted in our hearts and which necessa- 
rily influences us, ojierate in the same way to 
exclude other parties, by reason of analogy? 
[Mr. Ewing— Let us see, Mr. Trimble. 
Interest excludes a man if he has any 
liecuniary interest.] Mr. Trimb'e. The known 
bias that men had for their own interest 
fiu-nished the reason why the common law 
excluded them. I say we act irom a knowl- 
edge of the human heart, knowing we are in- 
fluenced by relationship. I appeal to the prin- 
ciples laid down. I say that by the common 
law he is excluded. Now you have within you 
the lights of reason. You look around for 
usages, for rules, niaile by wise men. You de- 
rive light on these questions. If we were here, 
guided by the common law, and you wanted to 
know what would be a wise rule in determin- 
ing the qualification of a member, you would 
look probably to what has been the common 
seu^e of niankindjand which is embodied iu your 
code. Vou would look to the rules which 
govern the Supreme Court; perhaps you would 
instantly ask whit is the rule in ihe Supreme 
Court of the State of Tennessee? Not that you 
are necessarily and technically bound to be 
governed by a mere arbitrary rule of the Su- 
preme Court, because you can burst the i ands 
and rise into higher realms Probably you 
would flrst refer to your own instinct, your 
own intuition. If a brother has an interest in 
a ca'e there i» no need of argument. If you 
were told that a father was sitting upon the 
trial of bis son what would you instincuvely 
and intuitively feel? Wouldyou rot think that it 
was cruel to put him in such a position? Would 
you not ihiuk he was wanting in moral sense 
to put himself in such a position? You w uld 
decide against it instantly, by those principles 
which are more clear than speculative or logic- 
al rules can be. Probably you would next ask 
What is the rule in the Supreme Court upon 
such matters. Hov/ do they decide matters of 
practice in the highest courts of the .State? 
Does a brother sit in the Supreme Court to try 
a brother, on ;i question aflecting theliieaucl 
|)roperty ot a brother? Y'^ou flnl, when you 
look into the authorities upon 'he subject, that 
they are excluded from sitting, within the 
sixth degree of relationship. 1 think that the 
wisest guide is your own judgment. That is 
thi; wisest guide for a huniuu being that I know 
of. Next to that, if jou rest upon meiC author- 
ity, you would look at the rule prescribed by 
the courts. You would And. then, that the rule 
observed in the Supreme Court excludes a 
Judge who is related to the party tried, within 
the sixth degree of relationship. [Judge Brien 
— Allow me to say that you are concluding 
thih argument, and all we want is a fair ch ince. 
Is the Supreme Court bound bv the rule laid 
down in the statute?] Mr. Trimble — Ihey are 
bourd by the statute. Bui let us suppose that 
the Supreme Court is in session, and that tliey 
are bound by the statutes. But let us suppose 
that the Supreme Court is in session, and that 
three members are pre-iding. A cause is called, 
civil or criminal, as it may be. One of the^e 
judges is a brother of the p^rty to be tried. I be- 
lieve there is but oneoiher point. The gentleman 
falls back upon the article of the State Constitu- 
tion providing for a court of impe.ichment, which 
declares thatihe Senate shall be composed of 
members th;it are sworn in a,> a court. There is 
no oth' r provision prescribed at all for the Sen- 
ate of the State of Tennessee. This is ■■ he high- 
est Legislative branch oi the Government It 
consists of twenty-live members select d from 
twenty five districts of the Staie, and exercise 
the power of the highest branch of the govern- 
ment. The Senate IS now made a Cour of Im- 
peachment It IS not the Supreme Court, not 
an inferior court, but a court consisting oi sev- 
enteen members of the Senate of Ten- 



23 



nessce. It is a Court of Imppachment, 
orgauizpcl for the public good, and for the 
trial of those public functionnries who betray 
their trusts. Now, then, what constitutes the 
Senate? Must every man of the twenty-five 
be here? Will the gentlemanon ihe other side 
say that evervni'mber mu-t sit? The ques- 
tion of the qualification oi Senators has been 
before this Senate. I allude to the (Jave John- 
son case. Now here the Senate is turned into a 
Court of Iiupeacliment and is sittinjr as a judge 
of the qualifications of thememberof the court. 
But suppose that! he Senator trom Knox an't 
Roane were to sit in his own case, I admit that 
it would be difficult to get up such a cast;, but I 
make the point lor the sake of argument. The 
court has not yet determmed whether it will 
make its decisions in the presence of the mem- 
bers of tlie bar or excUide them. 

Mr. Trimble inquired whether the court 
would deliberate with closed doors upon the 
point raised bv the managers. 

Mr. Mayuard sent to the Clerk's desk some 
authorities bearing upon the point, which were 
read, showing that it was the custom of the 
British House of Lords and the United States 
Senate, when sittiag as Courts of Impea hment 
to deliberate upon questions for iheir decision 
in s.ecret 

Senator Senter ofl"ered the following resolu- 
tion: 

Resolve, Thatin the deliberalion of all ques- 
tions submitted to this court, th ■ counsel an ! 
all snectatois and reporters, be excluded from 
th€ Senate ch> mber. 

The resolution was adopted, ayes 14, noes 5, 
Sen.itor Frazier being excused from voting. 

The chamber was thun cleared, and after de- 
liberating some time, the doors were thrown 
open, and the court adjourned to nine o'clock 
Thursday morning. 



THURSDAY, MAT 9TH, 1867. 
At nine o'clock Thursday morning, May 
9th, the court was called to order by the Pres- 
ident. Nineteen members were present. The 
President then announced that at the private 
session of the court on the precedinsr day a 
decision was arrived at in regard to the motion 
made by the managers on the part of the Slate, 
to exclude Senator B. Fraz er, brother of the 
party impeachea, from sitting as a member of 
the court. That decision would be read fi-om 
thejournal. The clerk then read the journal, 
and the following is that part of it which re- 
lates to the business transacted in secret ses- 



The President announced the question be- 
fore the court to be as follows, to-wit: shall the 
motion made by the managers on the part of 
the House of Representatives to exclude the 
Senator from Knox and Koane, (Mr. Frazier,) 
from sitting as a memtier of the court, on the 
ground of relationship and bias to the respond- 
ent now on trial, be sustained? and on the 
question the vote was tuken by ayes and noes. 

At the reque^t of the member from Knox and 
Roane, (Mr. Frazier,) he was excused from 
voting on the proposition by the eourt. 

« n the question before the court the vote stood 
ayes 13, noes 6, as I'ollows : 

Ayes— Messrs. Aldridge, T!os'-on, Cate, Hall, 
Keith, McKinney, Mi;u;iwee, Nelson, Powell, 
Patterson. Senter, Spenceand Kobinson— 13. 

^oes— Messrs. Carrigan. Johnson, McFarland, 
Smith, Thompson and Prtsideut Frierson— 6. 

And tl e motion was sustained, and the mem- 



ber from Knox and Roane (Mr. Frazier) was 
excluded from serving as a member of the 
court. 

Senator Carrigan here said he would like to 
know what was meant by the word "excluded." 
He thought it would be better to say that Sen- 
ator Frazier was denied the privilege of taking 
part in the trial. 

Senai^or Senter suggested that the records be 
so amended as to declare him incompetent. 

Mr. Trimble said he understood the court to 
sustain the motion of the managers, and called 
for the reading of the motion made by the man- 
agers to prevent Senator Frazier from sitting 
as a member of the court. The motion, which 
has already been published, was then read by 
the Clerk. 

Mr. Carrigan said that he desired to amend 
the record by saying that Dr. B. Frazier was 
denied the right to participate in the crial now 
pending before this court, by a vote of thirteen 
to six, twenty members of the Court of Im- 
peachment having been sworn in. 

Mr. Senter objecied to the proposed amend- 
ment, as it was an appeal from the decision of 
the court, indirectly made 

Mr. Carrigan said he should certainly in- 
sist that the correction be made, because it was 
in strict harmony with the facts. 

Mr. Trimble said there could be no amend- 
ment to the record of the court after a vote had 
been taken 

Mr. Carrigan said that, with all due defer 
encetoihe gentleman (Trimble), he should 
have to call him to order, as he was not a mem- 
ber of thQ court. Mr. Carrigan insisted upon 
his motion 

Mr. Trimble then said that he thought the 
State had an inteiest in this case, and that 
counsel had a right to make suggestions and 
arguments . 

Senator Thompson said that all he desired 
was, tnat the record should speak the truth. 

Mr. Powell said that if the member made a 
written statement for the purpose of amending 
the record, he should state the whole facts. 
When the vote was about to be taken in regard 
to Senator Frazier's right to sit, he (Carrigan) 
begged that he might be excused from voting. 
The object of the moti )n, as I understand it, is to 
raise the question that nineteen members were 
sworn in, and that a certain number gave their 
votes against the proposition. They insist, or 
intend to insist, that Mr. Frazier, although he 
asked to be excused from voting on his own 
case, is still entitled to be counted ; and if you 
are going to amend the record, that fact should 
be stated, so that it may be understood by the 
bar and by the court, and by everybody else. 
The reason his vote was not counted is not 
stated in the record. My object is that the 
court and the bar may distinctly understand 
how the matter stands. 
Mr. Trimble said he understood the Presi- 



24 



•Jent to admit that the counsel for the State had 
aright to make suggestions and arguments if 
necessary. 

The President remarked that he did not see 
any reason why suggestions should not be made 
hy the counsel in reierence to the record. He 
then referred to thp first rule established for the 
government of the court, which has already 
been published. 

Mr Carrigan said he only proposed to change 
one word in the i-ecord. His proposition simply 
reiterated what the record said, that there were 
twenty members sworn in. I want to say that 
Dr. Frazier instead of being excluded from the 
court, was denied the privilege of sitting as a 
member ot the court. 

Mr. Trimble stated that the motion offered by 
the managers on the part of the State, as to the 
competency or incompetency of Senator B. 
Frazier to sit as a member of this court had 
been ai-gued at length by counsel on both sides. 
The court decided to sustain the motion. He 
considered that the journal asserted nothing 
more than this fact. Motion was now made by 
a member of this court to change the journal. 
A protest could be written and entered on the 
journal, but after a question had been decided, 
the record could not be changed. 

Mr. Senter said that the word "excluded" as 
a member of this court was of the same sig- 
nificance as declared incompetent. He would 
have preferred that the expression "declared 
incompetent as a member of this court on ac- 
count of relationship to the respondent" should 
have been inserted; but the sense was the same. 
He therefore moved that the journal standi ap- 
proved as read. 

Senator Thompson thought that the court had 
a right to manage its own record. All he de- 
sired was that the facts should appear. 

The President said any member of the court 
had a right to deliver his opinion. The motion 
before the court was that the record should 
stand as it was. 

The vote was then taken, ayes 17, noes 2. The 
record was therefore approved. 

Senator Carrigan then presented the follow- 
ing protest, which was read by the clerk: 

Mr. President: The umlersigned, a member 
of this court, and a Senator of the state of Ten- 
ness, does sulemuly protest against approving 
the records 't the court, marte yesterday, in the 
case of Dr Frazer I insist that the record 
should say that he was simply denied the privi- 
lege of participating in the trial now pending 
before us, ana thit he was denied this liberty 
by a vote of thii teen to six, and that there were 
twenty members sworn in. 

J. G. Carrigan. 

Gen. Smith, one of the managers on the part 
of the prosecution, said : With the permission 
ef the court, I wish to read a statement made 
in the Nashvile Union and Dispatch of this 
morning, and to protest against the accuracy 
of that statement, because it is a reflection up- 
on the counsel and the management on the part 
of the State in this case. 



Mr. Trimble here said that the counsel on the 
part of the State desired to retire from the Sen- 
ate chamber for a few moments, for consulta- 
tion. 

Mr. East— Before you retire, Mr. Ewing has a 
motion lo make. 

Mr. Ewing— The respondent wishes, by the 
leave of the court, to enter his protest against 
the decision upon the question that has just 
been announced by the President. We have 
drawn up a short protest, but would like to 
have time until to-morrow morning to make 
it. more full. I have a protest in my hand now, 
and as it contains about the substance of what 
we wish to say, if time is not given by the court 
until to-morrow morning, I will read that pro- 
test now. 

Mr. Trimble— We will consider the protest 
entered, and leave granted until to-morrow 
morning. 

Leave was granted the counsel for the State 
to retire for a few moments, and they retired. 

During the absence of the counsel, Senator 
Smith said : If we have a right to exclude Sen- 
ator Frazier on account of being a brother of 
the respondent, I hold that <.ve have a right to 
exclude any member of this court who has 
formed or expressed an opinion in this case. I 
want to know whether this court will excuse 
me from further participation in these proceed- 
ings. I have formed a deliberate opinion in re- 
gard to this case. If the rule of exclusion on 
account of relationship within the sixth degree 
is adopted, I hold that the counsel have a right 
to exclude every man who has formed or ex- 
pressed an opinion. 

Mr. Kwing -Mr. President, as the defendant 
is interested in this question, and as the counsel 
for the prosecution is absent, I think this ques- 
tion should not be considered until the counsel 
for the State return. 

[The counsel for the State here came In.] 

Gen. Smith, one of the managers on the part 
of the House of Representatives, here read the 
following article published in the Union and 
Dispatch : 

The COMPETENCY OF DR. Frazizr.— The Sen- 
ate makes slow progress with the work for 
which it conveneit as a court of impeachment. 
Instead of trjing Judee V razier on the article 
of impeachment preferred by the House of 
Kepresentatives, it. seems to be trying I'r. Cra- 
zier, one of its members, upon a sug<festion of 
incomijetency to sit as a meniher ol the court 
on the ground of being a brother of the -ludge. 
The very question came up at the organization 
of the court, on the 11th of i'tiarch The follow- 
ing occurs in the report furnished us by our 
Leisglative reporte ■ of the proceedings at the 
organization of the Senate as a court of im- 
peachment : 

"Mr. Smith, of Hardeman, suggested that, in 
view of the fact that one of the members of the 
court might be deemed objectionable on ac- 
count of his relation to the defendant Judgf- Fra- 
zier, woidd it not be advisable that the Sena- 
tor should withdraw from being one of the 
court? [.Senator Frazier is a brother of the 
Judge.] 

"Mr. Senter said that Senator Frazier had ex- 



25 



pressoil a -will'ngness, before being sworn i^. 
not to take anv part in the trial; but he (-en- 
ter) :ulvised Mr. Frazier to be sworn in, as his 
relationship with the deiendant would not. he 
thought, at all affect his standing as a member 
of ttie court. 

" Mr. East remarked that the fact ot the Sen- 
ator Ijcing a brother of the defendant did not at 
all (li-qualify him from participating in the 
trial a> a member of the Senate. 

"Mr. Smith, of Hardeman, here withdrew his 
objections." 

it thus appen-s that the question of incompe- 
tency was mooted at the proper time, and wa? 
subsequently withdrawn by one of the mana- 
gers. This aferthought looks as if it were 
prompted by some motive which bad its origin 
in that higher law which ovtrrides the written 
law of ihe State; and the pertinicity with 
which it is pressed is well calculated to give 
color and form to such a suspicion. 

Gen. Smith— Mr. President, may it please the 
court, the facts oi the case, as recollected by the 
manigers in this prosecution, are, that an ob- 
jection was made by the managers to Dr. Fra- 
zier's sitting as a member of this court, on the 
ground of his being a brother of the Judge who 
is on trial. It was stated by Mr. East, on be- 
half of the defense, that we were only organiz- 
ing the court, and that it was probable we 
would adjourn to some future day. I wish to 
state simply that I never waived my objection 
to Dr. Frazier's sitting as a member of this 
court. This is the correction I wish to be made 
by the paper. lam very anxious, indeed, that 
nothing snail be printed which is derogatory to 
the case, and that the public mind may not be 
biased one way or the other. 

Mr. E ist— The court had been sworn in on the 
morning previous to the time that thi» defender 
was summoned. Some eighteen members were 
sworn in when we came into court, our object 
being to get time to piead. I mean that on the 
occasion alluded to by Mr. Smith, just before 
the adjournment, the question was made by Mr. 
Smith ; and while the report is not entirely ac- 
curate as regards myself, I think I made a 
statement about to this effect: Alter Senator 
Senter had stated that Dr.Frazier had conversed 
With him as to whether he should retain his 
seat as a member of the court. I then said it 
was due to Dr. Frazinr to say that I had told 
him to be sworn in, and that on a subsequent 
meeting of this court itmight happen that there 
might n©t be a quorum without him, and then 
the responsibility of the failure of a trial would 
be thrown upon him. 

Senator Seuter— It is not necessary to add 
anything further to \t hat has been said. The 
report, so far as I am concerned , is not correct 
as given in the paper this morning: "But he 
(Senter) advised Mr. Frazier to be sworn in, as 
his relationship to the defendant would not, he 
thought, at all affect his standing as a mem- 
ber of the court." Taking that account as it 
simply stands, without any further explana- 
tion, it would be inferred that I had advised Dr. 
Frazier to be sworn in as a member of the court 
and to act in every capacity as a member of that 



court. Dr. Frazier will bear me out in the 
statement that I said his being a brother of 
Judge Frazier was not an objection to his being 
sworn in as a member of the court, but that it 
would be an objection to his action. 

The President— While the counsel on the part 
of the State were out, a member of the court 
raised a question, which was laid over until the 
counsel returned. 

The Clerk then read the resohition presented 
by the Senator from Shelby, tMr. Smith.) 

Besolved, That we ho'd that any member of 
this court who has formed or expressed.an opin- 
ion upon the question of the guilt or innocence 
of the respondent, is incompetent to sit on the 
trial of this cause, and that to effect the objeit 
of this motion, each m<mber will answer upon 
oath the following ques;ion: "Have you formed 
or expressed an opinion as to the guilt or in- 
nocence of the respondent." 

Mr. Maynard— I Avill merely refer the court 
to the precedent that I cited yesterday morn- 
ing, from the Senate of the United States, 
where,upon the trial of Judge Pickering, three 
gentlemen were present who had been mem- 
bers of the Lower House when the question of 
impea' hment was raised and who voted for the 
articles of impeachment. Those members 
were subsequently transferred to the Senate. 
Thequ(Stion of their competency arose. One 
of the members desired to be excused. The 
Senate decided that these members were quali- 
fied, and refused to exempt them from serving. 
Tney sat upon the bench and voted, as they 
voted in tlie House upon the final decision, for 
conviction and removal of the deiendant. I 
take it that that is a precedent which should 
be a controlling authority in this Court. I find 
in Cushlng's Parlimentary Law, Sec. 2557, the 
same doctrine stated. [The section referred to 
states that it is no objection to a member sit- 
ting in the capacity of a trier that he has al- 
ready participated as amtmberof the Lower 
House in agreeing to the charges. 1 For this 
assertion the case that I referred to in the Sen- 
ate is cited, and also Hazell's Parliamentary 
Precedents, an English work on parliamen- 
tary law of high and admitted authority, 
showing that such is ,the law, not only in the 
United States, but also in England. 

Mr. Trimble— If there be any particular 
member of the court not qualified, of coursg 
counsel can raise objection. Then the question 
is directly before the Senate. In fact, we did 
have a case under consideration, and we con- 
sidered whether we woula make objection to 
a particular member of the court. Upon con- 
sultation we decided not to do so. It is com- 
petent for the counsel for tne respondent tc 
raise objections 1 1 any member of the court, if 
they have any. If any member of the Sen^ite 
excepts to himself and gives reasons why he 
should not sit, then it will be simply a ques- 
tion for the Sen ite to decide whether he should 
sit or not. In addition we also have a right to 
object to any member of the court if we thint 

he ought not to sit. 



26 



Mr. East— I want to make a sugrgestion or two 
in regard to the matter before the court. It is 
this, that we supposed it liad generally been 
thought that bias, either from relationship or 
from the lormation of an opinion upon the 
guilt or inno(;euce of a party, did not apply to 
courts of impeachment. In a body like this, 
which is composed of twenty-five members, 
twenty-f lur of whom are supposed to be im- 
partial, the State could not suffer by 
reason of the presence of the other 
member. In this case there are twenty 
members; nineteen are supposed to 
be impartial. The counsel for the State object 
to one, and say that the interest of the State 
will suffer in the hands of the nineteen. That 
is the precedent which has been established. 
The precedent established for the government 
of this body is that the question of bias can 
be looked into. I suppose, whether the bias 
arises from relationship or Irom an opinion in 
relation to the guilt or innocence of the party, 
it is the question of bias, not the cause of bias. 
You have established that as a precedent. 
There is no previous court that would hold for 
an instant that because a man was too much 
biased to try a relative, a man who had formed 
orexpressed an opinion would not be influ- 
enced. That is the question now presented to 
the Senate, under the precedent established 
yesterday. 

Judgo Brien— I had supposed, sir, that when 
this Senate was oraauized on the ll'h of March, 
the organization was complete, and that there 
could be no question that could arise afterwards 
in r(?ference lo the organization of ine Senate, 
under that constitutional provision, that makes 
the Senate thejudge of the qualifications of its 
own members These are questions that arise 
before the members are sworn in. But the ob- 
jection was ra sed by the counsel on the part of 
the State, that there was a member who had 
been sworn in who was iucompeteut to sit in 
the court, and the reason given for the investi- 
gation into this matter was that the Senate had 
the power ro determine the qualifications of its 
own mfiubei-s. The Senate entertained the 
proposition. The court determined that, al- 
though the court had been organized as a court 
for the trial of this impeachment, the question 
■was still open as to the qualifications of mem- 
bers, and could now be investigated. That hav- 
ing lieeu done, I t^ke it for granted that my 
views in reference to the question were wrong, 
and ihat the decision 01 this question by the 
court now tiecomes the law of this court, and 
that ihey are to be governed by it, as in the de- 
terminaiiou of this question the court departed 
from the estal>iished usages of the 
courts of imi)eachment. The case 
in the Senate of the United States, 
referred to by the gentlem in, was one which I 
regarded as a I ightiul precedent, that a party 
w ho had lormed or expressed an opinion was 
not thereljv diN<iualified from sitting ; but this 
court having detenuiued that this precedent 
does not apply to this court— thii^, I say, pre- 
sents an altogether difierent question. Having 
departed from all the princip.es established in 
impeachuiLUi trials, and having adooted in lieu 
thereof the statutes of the State of Tennessee, I 
am bound, as this court is, by the law they 
have made. I ask gentlemen to point to anV 
case adjudicated, or any precedent in the world, 
where an objection Has bten made to any man 



that he could not sit in a court of impeachment 
on account of his liaving formed orexpresed 
an opinion, or of his relation--hip, as laid down 
in our statutes, within tlie sixth degiee? It 
rannot be found, as I app'ehend. In the little 
research that I hive made I iiave been wholly 
uualile io find any such inecedent 1 hen, when 
you depart from the established usages thit 
govern courts oi impea<hmei.t, anii adopt £n- 
otiiercode. that becomes ihelaw of this court, 
and then the court is to be governed by it. 
Now, what IS the rule you have adopt d? The 
statute of the State of Tennessee that excludes 
a partv from sitting in a case, because of rca- 
tionship. What does the statute of the State of 
Tenne^sce ptovide? What oiher rule is there 
when you leave the rules that govern couits of 
impeachment? I say that prima /ac^e you have 
deiermined right and we are bound by yourde- 
c sion [Ml-. Trimble— Are you arguing in 
favor of the resolution before the Senate J] Mr. 
Brien— I intend to argue in favor ( f it. What 
does the Constitution of the State of Tennessee 
require, besides, as a disqualification? Not only 
that he shall not be related t > the party, but 
that he shall not liave termed or expressed an 
Opinion j'S to the guilt or innocence of the 
party. If he has, that disqualifies him 
equally as much as relationship. In order to 
try a case of felony as charged, he must be a 
householder or iieeholderin the county whtre 
the ofl'euse was committed. If there should be 
a member of this court who is not a citizen of 
Tennessee he would be excluded under the law. 
Will it do, I ask. sir, to say that Ave will take 
suih part of the restrictions laid down in the 
statutes as suit us, and not observe those which 
do not suit us? That will be the effect ol it. 
The statute says that relatiouship within the 
sixth degree is a disqualification. This court 
has decided that it is. Is it a disqualification 
for a man sitting on the trial ot one charged 
with felony, that he has formed or expressed an 
opinion in regard to tl)« part> ? Tlie statute 
says it is. Th refore the precedent referred to 
in the case of impeachment in the United 
States Senate does not apply. LM""- Patterson 
—Do we have any statute which disqualifies a 
judge from sitting on a case where he has form- 
ed or expressed an opinion?] Mr. Brien — 
Not at all, sir. This is a jury to try and de- 
termine. A judge does not try and determine 
a case. He chanres the law, and the jury de- 
termine the question of guilt or innocence. If 
thejudge has formed or expressed an opinion, 
that makes no difference. It is the man who is 
to try and determine the question who is to be 
unbiased. Thereiore I say that the resolution 
*of the gentleman from Slielby (Smith) is cor- 
rect, and according to the law which tnis court 
has made the statutes of the State of Tennessee 
are to govern us in this case, 'that resolutioa 
becomes very important, and If members of 
this court have formed or expressed an opinion 
it disquaifies them as much ;s relationship. 
[Mr. J^itterson- Would not this apply to a 
(Jhancellor?! Jud«e Brien— The Chancellor 
d'les not try criminal cases. He decides 
civil questions, and not criminal ques- 
tions in which the life and liberty of 
others are involved. Well, I have a plain way 
of doing things, and that is to march right 
straight up and not dodge if you take the dis • 
qualifications made by the statute of the State 
of T>nnessee for jurois who are to try a case, 
you must not take one, but all. If it is ri^ht to 
take one if. )s right lo take all. In this fr,dland 
fa len race of ours ihere, are men whose minds 
soar above prejudice where their relations are 
concerupd. It" won't do to say, oti adount of 
this, that all men who are related can try such 
cases fairly. This court does not know whether 
Dr. Krazier would be in lavor of his brother or 
not; but they iuier from his relationship that; 
he would be in favor of him. That he might be 
prejudiced is justly inferred. On the other 



27 



hand, here is a man who has formed and delib- 
erately expressed an opinion on this subject, 
and you say that he is not disqualified. Why is 
a rehitive excluded? Berause he may have 
formed or expressed opinion* lavorable to his 
relative. Why is the man who has formed or 
exprc'S>ed an opinion excluded ? Because he is 
then regarded as incomperent to sit upon the 
trial of any one charged with a felony. Now, 
you have a direct case of an opinion I'oVmed or 
expressed which does exclude by the laws of 
Tennessee. I am not now making any question 
as to the decision of this court in reference to 
the laws which govern it. I am hf re simply to 
have those laws enlbrced according to their 
spirit and meaning. Therefore, I say that if 
this court has, as it really has, established a 
law that is to govern it in the trial of this case, 
and which is a departure from the laws hereto- 
fore observed, then to all intents and purpos- 
es it is a repeal of all the laws hereto- 
lore established. There is no law now to gov- 
ern us in this trial, except that irade by cnis 
court. Now I take the laws of Tennessee 
as having been established to govern us. Why 
is it important that we should observe these 
rigid rules in reference to the trial of parties 
whose livfs, liberties or characters are in- 
volvt d? Need I remark, sir, that it has been the 
first and great aim of the framers and oryaniz- 
ers of this government to protect the citizens in 
all their rights, especally where life, liberty 
and property are concerned. Hence they have 
enacted the'most complete and rigid rui'es for 
the protection of a party charged with an of- 
fense which might forfeit his life or liberty, or 
destroy his renutation. The law presumes every 
man innocent until the contrary appears. His 
jurv are his peers and his equals. What rights 
and (iowei-si) re given to them? They are made 
not only the judges of the facts, but the judges 
of the law, to determine as to his guilt or inno- 
cence. What powers has Ibis court? Thev oc- 
cupy precisely the position of jurors; they are 
the "judges of the law and of the facts, in refer- 
ence to the allegations made again«t the defend- 
a'.it. If they are lo be the judges of the law and 
of the facts— if they are to be the arbite' s of the 
interests of tliC accused — ii trom their decision 
there can be no appeal— how important does it 
become that they shall act freely, without bias, 
without piejudice and without pre( onceived 
opinions of the guilt or innocence of the party 
accustd. &o careful were our lawmakers that 
this might be done, that they adupted a set of 
laws which say, if you are related you shall 
not sit on a jury; if you have formed or ex- 
pressed an opinion as to the question of guilt or 
innocence, you slfall not sit on a jury. You are 
empowered so to act that the lile, liberty and 
reputation oi your fellow citizen may receive 
due proic'tion. Your hands mu-t be clean be- 
fore the country, and your minds free from any 
bias. This court occupies that pusition to-day, 
in refei-ence to the accused. Now, the court will 
remember that I am acting on the supposition 
that you have established the laws of the State of 
Tennessee fo i- your govern ment in this 1 1 ial. That 
being S'l, I ask if this resolution is not right. I 
ask this honorable court, when they h ive deter- 
mined to depart from the established rules and 
usages of courts of impeachment and to adopt 
the laws of Tennessee, if they do not feid that 
they ought to come with minds unbiased and 
without previously formed or expressed ideas 
as to the guilt or innocence of ttie defendant? 
The gentleman argued on yi sterday that the 
brother of Judge Frazier ought indecency, and 
for the protection of bis reputa ion. to tucline 
to act. Ought not beuatois w ho have formed or 
expressed an opinion in this case, say. we do 
not feel authorized to try this case? If tlie court 
had ni)t adopted the rule it has, this ques ion of 
opinions as lo the guiltor innocence of the de- 
fendant could not have arisen atall. But it will 
not uo 1 o say that we will take such parts of the 



statutes of the State of Tennessee as suit us, 
andexclude others that may militate against 
the views of the prosecution. I am sure that 
this honorable court desires to do right in the 
trial of this case. From my knowledt;e of the 
members of the court, I know that if they were 
inadvertently wrong, it would be a source of 
regret to them all the days of their lives, if 
injury had resulted to any mie from their 
wron^'. I do not stand here to shield a guilty 
man trom the penalties he may have incurred 
on accent of any violation of the law. I stand 
here to rejn'esent his Ciise fairly. I do not in- 
vestigate now thp merits of this controversy. 
I only reier to|the rules 01 law estublished by 
this court. Therefore I submic to this honor- 
able body, whether the resolution oflered by 
the Senator from Shelby is not the correct rule 
by which we are to be governed. 

Mr. Trimble— The main question Is the adop- 
tion of the resolution olfered I y the Senator 
from Shelby. The members of the court have 
been solemnly sworn in to try this ca.-e imi ar- 
tially. The presumption is that every member 
is qualified. So it was in Dr. Fiaziei 's case yes- 
terday. The presumption was that he was 
competent until the question was raised, 
and he w;is competent until the 
court decided that he was not. We 
object to this resolutiou. it is an exception to 
every member of the Senate, and leaves the 
question to be decided breach member vv'bethi»r 
he has formed or expressed an opinion. The 
oath is to be administereel. How can we go 
through with the trial that way? It looks to 
me that this resolution might result in break- 
ing up the Senate. The object is to get im- 
portant men to sit on the trial, aud that can be ■ 
accomplished by the ordinary mode of pioceed- 
ing. The Senate had the power to decide 
whether Dr. Frazier was comuetent or not. 
Again it decided that a brother could imt .-it in 
the court. Both these points were decided in 
Senator Frazier's case. We raised objections; 
we said that in po nt of law his being a brother 
was sufficent to exclude h'lu. Th- counsel on 
the other side said, that having been sworn in 
he eould not get out. The Senate decided that 
it was proper for us to make the qu'-stion of his 
competency, and they decided that notwith- 
standing he had been sworn in, he wa-; incom- 
petent. That is all that case decides. It is 
competent for the counsel on both sides to raise 
objections. Any Senator may except to him- 
self and state his reasons, but by tliis resolu- 
tioD we get into perfect confusion. We can get 
an impartial court in the ordinary mode betier 
than bv this resolution. Jt would not be an 
objection to a juror that upon mere rumor, ui)on 
mere outside imormation, he had formed or ex- 
pressed an opinion The question is, vvlitther 
he has heard the witnesses in thecase, whether 
h:i believed their statements, and whether upon 
those statements he deliberately formed an 
opinion. This would be something like a plaus- 
ible cause for his rejection, but it would only 
be a p'ausible one. This case has never been 
tried. There was a case tried before Judge 
Frazier, but that was not this case. My objec- 
tion, then, to the adoption of this resolution is 
that there is no precedent lor it. The presump- 
tion is, that every Senator sitting here is a 
qualified and impartial Senator. J don't un- 
derstand, as the counsel on the other side argue, 
that you have adopted a code at all in the de- 
cision of Senator Frazier's case. I understand 
tliat you are governed by the principles oi the 
common law, by natural reason, justice and 
propriety. Y'ou are bound to act with sound 
discredon nni:er the common law. I iI'Mi't un- 
derstand that you have adopted the code. You 
may refer to tlie rules laid down in tlie code as 
rules of reason, but you are not Eecess;-.rily 
hound by these rules. 

Mr. I^^wing- Mr. President, we think, may it 
please the court, that Ave have a right, under a 



motion made by a Senator, to discuss it, and to 
dec de upon tlie proposition presenied. Tiiis 
has become a necessity, not by our action, but 
by the action ol' tlie counsel for ihe prosecvition 
and the action of the Senate. Now, sir, when 
the Senators were swoi-n to try this cause, we 
believed that the lasv was that every member of 
the Senate was aqualifie I member of the Court 
of Impeachment afti-r he liad been sworn. That 
•was our proposition and our opinion of the law. 
"We urged yesterday and the day befoi-e with 
what force "we migtit, that the objection could 
be taken i7i limine lO any member of the sen 
ate as a member of the Court of Impeachment, 
if he shoud be sworn He might be the brotli- 
er, he might be the enemy cif the defend mt, he 
might have formed or expressed an opinion, or 
boia, and that would be no objection. How 
would it have looked, then, may it please the 
court, upon our part to have made an objection 
to any member of this court, on the ground chat 
he was either a brother, an enemy, or bla^e'l by 
the formation and expressioQ of an opiuionv 
Had we been of theopmion, as the gentlemen 
■were, and as this court has dete mined, thai 
there could be no valid objection made upon 
grounds laid down in the statute in regard to 
jurors anil judges, our coarse might have been 
wholly different. They might have ma'ie ob- 
jection thei. to the brother of the defendant. 
We might have made objection to every mem- 
ber of the Senate. We might have challenged 
them on the ground ot the formation oi ex- 
pression of an opinion. We might have 
brought them to the test and put the general 
question, shall every member of the court be 
examined upon his voir dire a^ to iiis bias from 
relationship or rom any other cau'CV Why, 
sir, is not the juror challenged who is presented 
to try a criminal in any court? A. very juror is 
challenged to come to the boo fe and submit to 
an examination before he is suffered to be en- 
tered as a member of the jury. They have 
brought ab >ut this state of afi'airs, [Mr. Trim 
ble— We don't object to the organization of the 
court but to the competency ot a member sworn 
in.] Mr. Ewing— JMay it plea-e the curt, I 
say that they mane au objection to the organi- 
zation of the court in nialcmg an objection to 
one of Its memljers. Prima/ acie Dr. Frazier 
was a member of the court, priinafaoie he had 
a right to vote, prima facie he assisted to make 
a part of the quorum of the Senate; and he had 
a right to vote up to the time, at all events, 
when he was excluded by a resolution of th ■ 
Senate from luither s tting as a member of the 
court. What are the rules, sir, of the House of 
Representaiives, of every House, when a man 
is questioned in regard to his right to vote? if 
he comes to the House uf Represent<vtives or to 
the Senate of the State, or to the Senate of the 
United States with a certificate, and 
is admitted to his seat, and the ques- 
tion IS made in regard t > the validity of his 
Eosition, lie is i<X,\\\. prima facie a memljeruf the 
O'iy and is entitle I to its privileges. There 
may come atimewhe.i he is to be excluded, 
there may come a time when he is not to be al- 
lowed to vole; but he is a member of the Senate 
•prima facie until the quesiiou is de ided, for xr 
against him. I don't say this to impugn the de- 
cision already made. I say, as a matter or lavv. 
before Dr Fraziei's case nad been determined 
by this court he was a member of the court be- 
yond question, that he had a right to vote, and 
must be counted as a member oi the court. 
How can that be escaped, sir? Will you ad- 
judge him in advance; will you ex.rlude him, 
because he is goin< to be ex hided ? I appre- 
hend not. Then, Dr. Frazier was a component 
part of the court as it was organized, and the 
8Ui sequent question arises found' d upon an at- 
tack upon his position, which attack requires 
to be established. When it is established thao 
he is no lonner a member of the ('Ourt, and a 
rule IS laid down for the government of this 



court, which it is competent to make, overrul- 
ing if you please either the common law, or the 
decisions in impeachment cases that have been 
previously presented to other courts, it be- 
come.-^ the law of ths court, anils obliged to 
be valid, be its consequences what they may. 
Then you have establi-hed now as the law of 
this court that members may be attacked on the 
score of bias. You have said that Or. Fr-izier, 
us a brother of the (iefendent, may be excluded 
on account of bias. It is so written 'iown in the 
motion; it is so written down i the decision. 
You have established your own law, and I don't 
now proi'OSJ to question it. I acquiesce 
in it; but it then for the first time 
brings up the necessity on our part of e tab- 
lishing a general proposition What decis ion. 
establishes tlien a necessity upon our part to see 
that the consequences of that decision arc prop- 
erly carried out? With what face c iiikl we have 
made a proposition, at the very thre-hhold of 
this case, to examine every member upon his 
voir dire \iX\iiVi WQ held the law to be based 
upon irrefragible grotind, when we thought, I 
say, that we were st mding on a rock in regard 
to "the principles of law|governing that question? 
We made no oiijection, f r to have Luaiie an ob- 
jection would have b en at once admitting ou 
our part what we denitd, what we may neny. 
For the present we acquiesce in the dpcision of 
this court. We may reargue it at another stage 
of the case; but if we do acquiesce in that deci- 
sion, we demand that all its consequences shall 
follow. As tiiey have taken the position that 
Dr. Frazier is objectionable— as they have, upon 
a decision ol this court, eliminated him from the 
court— we now ask that that may be done 
wliich could not nave been done at our instance 
in the org.imzation of the court, and that is, that 
every member of the court m ly be sworn upon 
his voir dire. That ia why we introduce the 
general proposi ion upon this subject. When a 
jury is to he empanelled for the trial of an or- 
din ;ry criminal, every man that is presented 
for the purpo-e of te'sting his competency is 
asked upon his voir dire whether he has formed 
or expressed an opinion If we had thou.ht 
th.it that princip e of law applied here, we 
wouM have asked every member of the Sen .te, 
when he was presented, whether he had firmed 
or e.xpres.-;ed au opinion. Now, for the first 
time, it is necessary to settle this question by 
th^ action of the com t. If they can inquire, at 
this stage of the proceedings, in regard to the 
competency of Dr. Frazier, may they not in- 
quire in regtrd to the competency of eveiy 
member of the Senate? I apprehend, sir, 
that thi^ motion of a general character which 
is now maile is a proper motion to be settled by 
this court. Suppos.' the court shall say that no 
question shall be askel, that the court had the 
power to eliminate i>r Frazier, but that the 
court will make no turther inquiry in regard 
to the position of the members unless special 
cases are singled out. There is a propriety m 
adopting a general resolution on this point, so 
that .here may be no further question about it. 
If the court should determine in regard to this 
proposition that it is a proposition not to be en- 
tertained, or a proposition that the . will decide 
contrary to the desa-e of the counsel for the de- 
lendant, tiien the matter is at an end. Con- 
venience requires that we should adopt the 
general proposition, and determine \i hether 
this rule or that is to govern the court. Supi)Ose 
a resolution was intioduaed of a general na- 
ture in regard to any other principle ot law 
whether it shoald be the governing rule of the 
Senate, it might be dscusscd, and it might be 
acted upon. It would settle perhaps an infin- 
ity of cases ei. a riaiim. It is not only a i ight we 
have, but it is eminently convenient 'or the 
.senate tojudge whether this proposition shall 
be the law of the Senate or not. We come to 
ask upon the first occasion we can, when we 
are put upon our guard, when we have it an- 



29 



no'niced to ns that our opinion of the law is a 
mistaken one, and this is the first time we can 
■wiih pioprietv make the objection. We ass, 
Isav then, uniler this resolu ion.that an opinion 
shall be expte-scd by the Senate upon this 
point. If we cannol ol>Ject on the ground of the 
formation of opinion, tiiere would be no use 
or propriety in our making special 
objections to any particular member. But, may 
it jtlease the court, upon th;i merits of this prop 
osition, not upon its nature alone, we have 
something' to say. How 'toes the law stand as 
it is now ;idjuiiged by this c xirt? We held 
that a memlier ol this court could not be ex- 
cluded (or bias. We challenge i gentb-men to 
introduce any law on the subject tfiat xc'uded 
a member on the ground of "bias, of relation- 
ship, of enmity, of the formation or expression 
of opinion. We ^sked tliem to appeal to the 
common law, and wewere willing 10 abide it. 
But we<li 1 not ask them for their opinions upni 
nature and reason and common sense. We 
asked for decisions of the courts of common 
law. We asked for the established rules f.f 
common law. We searched the common law, 
and we 'ound this doctrine laid down. I did 
not bring a Ixiok here to establish that doctrine. 
I examiu'^d Cji>e upon Lyttleton, I examined 
B acksione, and toimd itlaiil down there in the 
law i atin that no ma'; should be a jxidge in 
his own c.^use. I admit that law here. It is 
the common law to which f refer, and rot any 
va^ue speculations upon what may be reason, 
common sense and justii-e. Imirhtbeof one 
opinion about what was common S'liseand rea 
son, and jast ce, and the gentlemen might be 
of another opinion, and the court mi ht lie of a 
third opinion; nn<\ we wouM be on the sea of 
speculation. Rut I regard the common law as 
someihing more than vague sueculitions on 
coniiuou sense. I regard it as containing the 
precedents and decisions that have grown uu 
in ag s past, and containing, as Lord Coke 
says, the perfection of rrsas^on. That is what I 
mean by the cammon law. In that common 
law I do find that no man can be a judge in his 
own cause. But in that common law I do not 
find that a brother may not sit in judgm'nt up- 
on the case of his bi-other, either as a juror or as 
a judire. I challenge the gentlemen on the 
ot er side to produce principles from the com- 
mon law, putting asiiJ.e vague sr ecula'ions. I 
call for a wriiten decision or precedent that ex- 
cludes a brother from trying a brother's cause. 
An! as ?io authority was produced, and as the 
burden of proof was thrown upon the other 
side, after we had shown that the common law 
did say that a man st'ould not :it on his own 
cause, ihey failed to say that any oth^r man 
"Was excluiled by the common law. As no au- 
thori.y was produced, I concluded tbat it was 
not to be found in the common law that a broth- 
er coiild be excluded. When the court went in- 
to private session, a^ nothing was produc d, 
and as they had no authoritj' in tne c"'mmou 
law, I apprehend that they must ha' c deci>led 
this ques'ion upon some oher prin< iple than 
that found in the common law. Am I wrong in 
that opinion ? In your own minds you csn de- 
cide who ther you voted to exclude the brother 
on the principle of common law. If you did, I 
would like to know where tlio-e principles are 
found. lam not impugning your decision. I 
■wisli to come to the ground on which your 
conclusion was based. I apprehend, then, that 
as you f und no i)rinciple la the common law 
upon whitli Dr. Frazier could be excluded, you 
must have decided this question upon some 
other gronnd. What other principle is there 
upon which your deci-ion could have been 
founded? There is one, and that is upon an 
ana'ogy to the statutes of the State of Tennessee 
For, may it please the court, it is nor, competent 
for this eourt to say, we decide upon general 
prineiules. It won't do to say that. 1 knov/ 
that this court is too intelligent and too high a 



court to do that, being a court of justice, and a 
court having the powers both of a court and 
jury. I know that this court stands upon too 
high a ground to say that when there was no 
rule to be found in the common law, they 
rushed out into vague idi'as in regard to a 
br.ither's sitting on liis brother's case Then, 
wlut do they tound their opinion upon? They 
must have founded their opinion upon an anal- 
ogy ihat they Instituted for the government of 
this court. It was probably said by a Senator 
to himself, here is a court. There are no par- 
ticular rules laid down in regard to its govern- 
ment. It is a constitution i court. In the stat- 
utes of the Slate of T' nnessee, it is laid down 
that there are certain objections whieh may be 
made to jurors and judges. An objection may 
be maele on the ground of aflinity or consan- 
gumit.v. An object on may be "made on the 
ground of bias and for other causes, for in- 
stance, enmity or preconceived opinions. That 
is the analogy on which that decision was 
made, for we hav< nothing to go upon except 
the common law and the precedents in impeach- 
ment cases, which become a part of the com- 
mon 1,1 w. Am I right in coming to the deci iou 
that the gentlemen oi the Senate have iieeu 
guided by an analogy to the statutes of the 
>tate of Tennessee in regard to judges au<l ju- 
rors? I think I may come to that conclusion 
safelv. It, then, that bea right c in lusion, we 
say, in the name of all that is righteous and 
reasonable, let us abide the analogy. Let us 
not take that part of the statutes which 
suits us, and reject that part wh'ch 
does not suit us. We must run out the 
analogy. Can we say that a brother is e cln- 
cludei, and that a cousin is not excl ded? 
Why, ia the statutes in reference to judges 
aioie, more persons are exclude i on acco lot 
of C' nsanguinity or affi dcy than m -mbji < es- 
c'uded. Youcnill ot have p use i on ex- 
cluding the brotl er,but would bavcibe -n liound 
also to h .ve excluUed the cou4n. So fartlie 
analogy would certainly have force ov^r y ui, 
having got into the ground of adopting the 
statutes of the State of Tennesee as applied 
to judges, for the government of this court, 
t'pon amlogy then, if you are to exclude a 
brother you are bound to exclude a cousin; 
you are also bound to exclude members for 
other causes. I know very well that it would 
haV'- be n distasteful to every man on t^iis 
floor to have presented himself here a-^ a mem- 
ber of this court unless h' WIS glided by an 
overwhelming sense of duty to the 8tate t > try 
this <ause. It would have iieen deeply dis- 
tasteful to him to have presenteo himselfh'-e, 
if he had firmed a precoii'-ived opinion tuat 
he would convict or acquit the defendant. 
But I can well nnder-tand, -Mr. President, how 
it might be that a Senator would come to the 
book and take the oath required, when he siys 
to himself, I have no choice in this matter; I am 
a brother, but the law makes me a .judge ; 1 am 
an enemy, but the law^ makes me a judge; I can 
ask to be excused, but it cannot be allowed me; 
1 am fixed here by necessity under the Censti- 
tution of the State of Tenne'ss e as a judge. But 
when we once get beyond that, and when we 
once decide that you are not fixed a-; judges by 
the Constitution of the State of Tennessee— that 
there may be members ol the Senate who are 
notcompetent to try — that there is a d squalifl- 
catio when a man stands in a certain relation, 
then you open^the door— then you are not judges. 
When the door is once ojien to a statutory ob- 
ject onto a judge or iuror, the decision in one 
case applies to the deiisionin all other cases. If 
a man can I'e excluded on account of nias in one 
case, he can be e.xcluded on account of bias in 
another. > o man believes his brother to be 
guilty of high crimes wi hout evidence. He 
recollects that he is a brother of the same fami- 
ly, that the decision of this court may attach 
disgrace or honor to the family to which he be- 



30 



longs. He is affected by a strong bias ; but it is 
bias, and nothing more. It is not different trom 
bias of another description. It' a man is a mor- 
tal euemr, his bias may be as strong as that of a 
brother; his determination to convict may be as 
str Dg as the determinati: n of a brother to ac- 
quit. If he has formed an opinion, that opinion 
may eviscerate from his heart a right deci- 
sion, the same as if he was b">iind in ch dns to 
the party presented as a criminal. It was not 
that we siiMpo^ed that a fair trial might be had 
from Dr. Frazier. Id was not that we felt that 
a trial might be had free from preconceived 
opinions, Ijut it was our conviction that the law 
flxeil Senators in their po-itions without regard 
to bias or brother^o^d, and that we could not 
get rid of them, But when the door is opened, 
and thedecision of the court announced, tlien 
we asli an application of it. If any member 
finds himself in a condition where, from any 
preconceived opinions, he would be an incom 
petent judge in this matter, he ought not to sit. 
I am reminded tnat one member of tlie Senate, 
feeling that he might be conceived to have pre- 
judged the case, resigned his seat as a member 
of i he Senate, on the score that he had been 
concerned in the habea' corpus case. I think it 
highly to his honor that he shoul I avoid the re- 
sponsibility of trying tliis cause as a member of 
the court. AVell, sir, if we had been ot the 
opinion of the gentlemen, that l:iias could have 
been an objection to the sitting or any member 
of this court, we would have made tiiat ohjee- 
tion. Other members of the Senate, however, 
may have been of the opinion that it was their 
duty as Senator-, notwiilistauding they had 
formed or expressed opinions, to come forward 
and do the bust tney might under all ttie cir- 
cumstances. We cannot always get an unem- 
barrassed trial. In that great trial that may 
come up before long belore the nation, it may be 
very difficult to get men who have not formed 
or expressed opinions. Under such iircum- 
i-tauces every man would prob djly say, '• I 
know it will be difficult 'or me to do exact jus- 
tice, but under the solemn ooligation imposed 
upon me lam obliged to sit in tiis case, and do 
the best I can." So with those gentlemen who 
V ere members of the lower House ot Congress 
and afterwiii-ds became membeis of the Senate. 
They asked to be excused. Their request was 
either reiused or passed over sub silencio 
Cases of this kind may arise, bit they have 
thought proper here to sett e matters different- 
ly. You have thought proper for the trial of 
this case to establ sli a principle of law by 
which you are to be aoverned. We ask only to 
begovencd by it and there'ore desire the 
adoption of this re-oluti'U. Wiiat course we 
may take if the Senate refuses to adopt this 
res •lutioii is a matter for lurther thought. 
\Vh' ther we shall object to members seriatim or 
acquiesce in thedecision of the court we are 
not prepared to say. But we say that the Sen 
ate may pass a resolution of this kind, by 
which to determine their course. Having ta- 
ken their i^osition ii reg rd to one kind of 
bias, they are bound to pursue the case thiough 
pII itb analogies. Now, may it please the court, 
I say once for al', that we should decide wheth- 
er this court is oi.ly an ordinary court, chan- 
cery court, an inferior court, or whether it is a 
hitfh court of impeachnent swi generis. ;I think 
it is a peculiar court, that it stamis upoii prin- 
ciples somewhat different from those that gov- 
ern other courts. Here we are triers of the law 
and tiie facts. We are jurors as well as j udges; 
we are trying a criminal cause. The 
charge is that this defendant has been 
guilty of high crimes and misdemeanors. Crime 
is a felony. We are charged with certain fe- 
lonious acts, an^l this coui't is to aiijudicate on 
the law and the facts. Kow,this court then stantls 
not only in the altitude of a court x^roper, but 
it also stands in that of a jury. The objection 
that may be made to one kindT of bias, may be 



made to another. We say that we would have a 
right to to examine every member of this courc 
on his voir dire if we had m ide the question. 
The court having opened the door ani an- 
no-incod their decision, we are enabled to make 
the question in regard to all judges. 
' Mr. Maynard— The main point of the argu- 
ment is, that this court has decided a new prin- 
ciple and departed trom the laws as they here- 
tofore stood. I don't so understand it. I hold 
th it this court has not maile law, has not 
changed law, but has simply declared the law 
as it has stood lor centuries, the law that canae 
down to us <rom an early age. They have dp- 
cided on precedents shown that they had 
an authority to inquire into the qualifications of 
the members of their own bo ty. Precedents 
from our own Sta.e, from sister States, from the 
United States, from Kngland, were followed in 
making that decision They have decided in 
conformity with the fundamental principle of 
our law and of all law, as far as 1 am 
aware, that no man can be a judge in his own 
cause;. and it is jus as much his own caus? 
when it invades the sanctity of his household, 
and strikes upon those whom God and nature 
have placed around him, as when it attaches to 
his own invlividual person. I suppose, from the 
nariow, lirnited view sought to be given to this 
question, that a man would be allowed to git as 
a judge in a case involving the rtsht and char- 
acter of his wife. Well, I suppose it could not 
be found, in any of the books, laid down in so 
many words, that a judge should not sit in trial 
in the Case of his own wife, because, as was 
said by my associate counsel, such a monstrous 
pr position was neverseriously urged. Insay- 
ing that aman shall not be a judge in his own 
cause, you say it all. It is his own cmseitit 
effects those immediately about him. the mem- 
bers of his own hotiseiiobi. I hoid that tins 
court has sim lily decided the law. They have 
maintained the authority that their predeces- 
sors have maintained in at least three cases — 
for I believe this is the foiirih Ga>e of impeach- 
ment in the history of Tennessee. Fiom 
immemorial usage, from time so far back 
tiiat no record exis s to the contrary, the ])re- 
cedent lias come down to us, that no one shall 
sit as a judge in a case oncerning his or those 
that areofhim. No.vastothe titne the ex- 
ception was made. It has been ttat'd and not 
contradicted here, that the exception was 
made at the very moment of organizing the 
court. I may premise that it is an excep- 
1 ion in the case of the excluded senator that 
did not appear on the records of the court. 
There wa^ nothing lO show that the Sena or 
was in fact disqualified. That there was any 
relationship, and wt know that, a> a niatter o;" 
fact, until recently, there were two Senators 
of the same name, one a relative to the im- 
peached party, and the other not. The objec- 
tion was made on the i art of the prosecution 
■when the court assembleil for trial, before any 
defense was i-ut in It was presented nt the 
very earliest moment when the court 
was assembleii for trial. Well, now, 
as has been well said, and was argued and not 
answe ed it is propo-ed by this piofiosition to 
challenge the whole coiu t and to consider every 
one o t em disqualilie I, and for e^ch one to 
purge himself by coming forward and beinic 
examined. I submit that t.his is not the mode 
of 1)1 oeeeding, even f we proposed to enter 
upon the inquiry of the fitness of the several 
members. The "members are prima fide qual- 
ified, and are so presumed to be 
unless one side or the other alleges 
to the contrary, or in default of that 
some one of the Senators urges his own unfit- 
ness. One of my associate counsel has referred 
to the authority from Lord Coke respecting the 
mode of making challenges. He says that if 
neither party challenges him he may challenge 
himteif. If any Senator thinks he iS disquall- 



31 



fled, why let him present his reasons. Then let 
it be decided whether he shall be excused from 
sitting in the court or not. What is urged here 
as a cause of disqualification, is no disqualifi- 
cation I referred to it yesterday, and read 
from mv place, a»'d ut a subsequent period re- 
ferred to the decision of the Senate ot the Uni- 
ted States in the cai»e of three senators in th'^ 
trial (if Judge Pickering. I will read it again if 
it is desiied or it can ne found in the report 
pylilishedin the morning papers of my remariis. 
Although one of the Senators desired to be excus- 
ed, he was not excused [The speakoi here reier- 
red t ' the trialo Judge Haskell, during whl'h 
Mr. Huntsman asks to be excused.] Could a 
stronger case b'^ put? A man comes forward 
and asked to be excused on his own behalf. 
He says that it is so reimgnaut to his sense ot 
duty tosif,that he wishes to be excused atid 
prays to be excused. Wl) en a motion is made 
to excuse him it receives one solitary vote, the 
vote of the m > ver. Every oi her member of tne 
Senate voted agair:st him. As 1 said on yester- 
day, you have no power to excuse men wuhout 
a legal and valid reason. You cannot excuse 
them from mere caprice. In the case on the 
trial of Juilge Wi liams, when the Senator al- 
legeii that he wa~ one of the p^irtie- aggrieved, 
the Senate t'ebi that he was disquaiifi d; but in 
this case, where the Senator had i:ot only forou- 
ed an opinion, but was a witness on the trial, 
and a witness again- 1 the deiemiact, the Sen- 
ate almost unanimously, with a single excep- 
tion, decided thut he wa^ not disqualified. 
Jurt'iermore. ly the terms of t!;e resolution, 
as I understandthem, the objection implied in 
the resolution Avouid not be nn objection on an 
ordinary ttiil before the criminal courts of 
the country; i. e., thi'. a juror, for example, 
has formed or exiire.-sed an opinion. 
In what w»y has the opinion be( n formed? Was 
his i. foraiation derived from paities who knew 
the facts or from rumor? Is it of sii li a cliar- 
acterthatbe should disregard it? I submit 
now that, in this case, it would be almost im- 
possil)le for any one who has read the articles of 
impeachment and the response made to tliem 
by ihe ac'used, not to have formed an opinion j 
respecting the case. Whv, such a proposition 
as this is without pr'-cedent. It is not couteud- 
ed that anything of the like was ei er attempt- 
ed or proposed in any court of impeaciimeui. 
But it is s;iid ttiat this court has departed alto- 
gether from the usages of courts of impeacti- 
luer.t has abandoned all prectdeuts, and es- 
tablished a new precedent. 1 have already 
answered that. This court has establish -d no 
new rule It has not been making laws or en- 
acting laws, but has simply decided according 
to law. But « e are told that in doing : o th j 
court followed the analogy of the statutes of the 
State ot Tennessee, with respect co the comjie- 
tency of judges. It is insisted that we shouid 
follow the analogy re-pecting the competency 
of j mors. The statutes exclude certain persons 
from serving as jurors, because they are re'a- 
teu within the sixth degree and also persons of 
intamous character, etc. But the statutes do 
noi anywhere s y that any one who has fo med 
an opinion sha 1 not be a juror. Suppose that 
the Senator alluded to who now appears at the 
bar here (Trimble) had taken his seat as a 
memb' r oftliis court. Then pei haps the question 
might have arisen whether he was disqualified. 
He surrendered his place, knowing that uy the 
rules of the law he was incompetent. You, 
theretore, were saved the necessity of deciaing 
in ttiiscase, as you elec ded in the case of an- 
other member oi the court. The authority I 
rCiiLl ouyesteniay from the Federalist recog- 
nizes the fact that a c^urt sitting as a court of 
impeachment must neeessarily be a boav of 
men who not only have tunned opinions," but 
have perhaps parti ipated iu the transaciions 
out of which the inquiry lias originated. An 
a.lusion was made by the" counsel uo a trial thut 



might come ofi" before the S< nate of the United 
states with respect to a high oUicer of this 
government. Do you suppose th it, as one of 
the triers, theri; would be found sitting a Sena- 
tor who occupied not the mere relation of a 
brother, but the relation of a son-in-law ? Do 
you think that sueh a spect tele wouM ever be 
exhibited ? Do you think counsel willbefound 
arguing not only the legality of it, but the pro- 
priety of it, and th t the .'-enator would stand 
by the accused, as a man stands by his friends, 
to ward oil the blow of .an assassin, and that 
when the court hael decidi d, as vou have de- 
cided, (hat a person holdingthatrelation lo the 
accused was incoinpetent as a trier, as a judge, 
a proiest would bfi entered against it? Never, 
never. Such a spectacle as tiiat will never be 
exhibited by the Senate of the United States 
before the nations of the world. You have de- 
cided simply the law of the land, the law as 
it always stood in our own State, in our own 
country, and in the countries from which we 
derive the great body of our laws, ^ow, if 
counsel on either side suppose that any other 
member of the court is disqualifiedor incompe- 
tent, let him reduce the cause of incompetency 
to writing, and submit it to the court. Let us 
decide upon each case as it arises. If any mem- 
ber 01 the court conceives thai he is disqualfied, 
let him make it known, as diel Adam Hunts- 
man iu the case I have cited, and let the court 
decide. But such a proposition as this— a reso- 
lution to be intro(,tuc.cd here at this time, that 
no member of the court is competent who has 
formed or expressed an opinion in the case- 
was ever SUCH a ruling made wuh respect to 
any judge of the lowest and most inferio ■ court 
of the land? On the other hand, is it possi'jle, 
in the nature of things, that a judge who has 
followed a cause from its beginning all the way 
up shall not have formed an opinion respecting 
it? A judge who has listened to pleadings, and 
who has decided demurrers, has probably 
formed an opiuion o' the case. Perhaps he may 
have decided it in his own mind the -. ery mo- 
mem, the facts came to his knowledge, fhe 
fact that he had an opinicn about it, so far from 
disqualifying him, it is only an additional qual- 
ification. Tiiat a judge is to have an opinion 
abMUt a case, and to come iu a state of inno- 
cence, I had alnio tsaid of mental imbecility, to 
deciae great questions, is a strange proposition. 
Now, m the case of a jury summoned to deter- 
miue a case, they stand in a difierent attitude ; 
but, as has beeii wel'. inquired liy counsel on 
the other side, that is the character of 
this tribunal. It is a court of the 
highest ch.iracter anil the most important 
known to the lawe and the State of 'i eunessee. 
It is called the high court of imp achment, not 
bound as the authority I read on yesterday 
stated, by the strict technical rules of law 
that areobligitory on other courts, but rising 
up inio the high dom .in of pure and impartial 
justice to adraini-ter the law between the peo- 
ple ot the State of Tennessee, .and high officers 
of the State, men entrusted with grave amhor- 
ity, and men ch.arge! wi.h abusing than trust. 
You sit here not a jury called t'> determine a 
si; gle fact, but j ou sit liure as judges under the 
high commission oi the peop e 6i Tennesi>ee. 
You are judges cloihtd w.th the power to de- 
termuie the qualifications of your own mem- 
bers. You are judges following ihe precedeuts 
established by great tribuna s similar to your 
own. It was your duty to have loimd oi t eve- 
ry thing about t-ie cast that ce^uld be asceitain- 
ed, to iniorm yourselves on princip es of law, 
on precedents, and everything that could lead 
you to a list determination. When you sat 
here as a Senate, anei the message cam'e from 
the members of the other House, standing here 
at your bar, dec ai ing in the name of the Ho ;se 
of Rfpresentativesctud the peopie of Tennessee, 
that tuey impeached Thomas N. Fr. zierof high 
crimes and misdemeanors, it was your duty to 



32 



co'isider yourselves a court for the trial of the 
case, tho igh the trial could not proceed, in ac- 
cordance with the Constitution of the State, 
until after the final adjournment of the House 
of Kepresentatives It was your duty to pre- 
pare yourselves for the high and solemn and 
responsible duty devolving upon you. In- 
stoa I of that the argument upon the other 
side is that you should have attempted to keep 
TOur minds in a state of utter ignorance, so 
that you should cime to this -Mse like untaugnt, 
inoxperienced children, to be impressed tor the 
reason that might be presented, as Mr. Choate 
once orcuilye.x pressed it, when speaking ot the 
duty of a iiiHge, he said thit it was the duty 
of a judge to know everything about the case, 
audi! possilil' nothint; about the party; and to 
rise into the realms oi pure and abstract justice 
and right. VVitU that view of the case, I sub- 
mit, may it please the court, that tliis resolution 
ought not to be adopted, because, in the hrst 
place it presciibesuqualilicat:on here that is 
Bot a legal qualification. It is not in conform! 
ty with the written law. it is not in conformity 
with reason an 1 good judameat What is as- 
seitedon the . ther sideis without precedent. 
Hone is pretended to be estaM I shtd. b t it is 
ins sted that this court has made altog the- a 
new princip e of law. Then again, as has >^een 
urged, ,ind not answcre i, every meu.ber ot the 
cou. t is presumed to be qualified unless some 
fact is pur, upon tlie record to show his disquali- 
fication. Upon r. asons shown it will be the duty 
of the ourt to decide, either affirmativ ly or 
neo-ative y as they shill find the law to be. 
Because, allow me to add. that sitting here as 
a court you decide in a manoer diffeient trom 
the decisions you makeias Senators. At^ Sena 
tors • ou have the power to make ;h:!t the law 
■which was not the law beiG e. '^ ou have the 
power to say what, in your judgment, should 
be ihe law; t.uc sitting as, judges it is 
first time bv the authority and aigument and 
yoiir uiyto'decde what is the law. n as- 
certa.i!nn!.Tthat, tiie so rce^ f imil ar to u ail, 
the elemen tary bo.iks and books of commen- 
tatr.rs. are to be leitTi ed o LSut thf^ source 
of th law is to be fou d in the constitution and 
ihe statutes and the decisions made in com- 
petint courts. We must remember tuat 
neither a constitut'on nor a statute can speci- 
fy every conceivable tomplication in human 
affairs, every conceivealite indiv dual case. 
The constitution lavs down general princi- 
ples. Statutes sometime- do not amplify them, 
butt ey give them the <fleLt of postive law, 
and then the courts come and apply ttiose prin- 
ciples to the cases beibre tiiem I will not 
troiible the court by repetition It i • gra-s ely 
in-isted here, in ihe arguments that ha\e 
been made on the other side, that this court, 
has changed the law by the ruling wh ch it 
mnde in 'he ca.'eof the Senator who was dis- 
quaiilied liy the court. 

Mr. Gaut— If we suppose that by 
going into the hearing of the testimo- 
ny and fhe law and the reason in the 
case, we should not have the benefit ol mind 
upon mind and the rules of law that should 
govern us and ttiat protect the rights, the lib- 
erties and the privileges of every man of every 
color in the State, we had bntter withdraw at 
once. Fur the first time m my life have I eve 
heard it ar.<ued that it was the duty of a court 
to make up an opinion betbre the trial. In the 
verv c "lebrated case of Mr. Chase, a distin- 
guished judge, be was impeached lor pre- 
judging Ihe case before the trial. I suppose, if 
thi honorable court plia<e, that we wU hear 
the evi ieace and thclawof t-e ca^e, and have 
afjir and impartial trial. It is the duty of 
the court, not only the right of the defendant 
but thedutyoi the court, to see that the de- 
fendant has" that ti ial It is also the duty of 
the whole court to see that the defendant has a 
f.ir and imi>artial trial. And we take it for 



granted that the court has no other motive. 
Then it is the duty of the court not to have 
formed an opinion and prei udged the case. la 
the Picker ing case, the Willi,! ms case and the 
J*la--kell case, three cases that have been re- 
ferred to, one exception was made and only 
one. One of the Senators was excus d, not as 
a matter of right but as a pr'vilege granted to 
him I do not intend to re-argue the question 
about the right of this court todetermire this 
matter, lurther than this, to repeat rnc for all, 
that tuere s but one solitary excei tion in the 
common law, and that is that a m m cannot be 
ajudge in his own case. The question is not ar- 
gued f lirly when it is said it is the fami y. 
That is not the common law. Mr. Maynaid is 
too good a lawyer i ot to l^now that by tin- corn- 
men law as well as our law, the wife" and hus- 
band are one person and have always been so 
considered. I ordy make this remark to tura 
tlie attention ot the honorable court back to the 
original proposition, that that is the only ex- 
ception. Heuce we thought that Seuitoi Fra- 
zier was a co iipetent judge on the tri- 
al of this case. We think so yet, 
I ut we bow to the deeision of this 
honorable court. Inma'iing that deciaon this 
court did not follow the omioion law. They 
did riot follow any precedents in other im- 
peachnien cases, but followed the analogies of 
our own statute. Having adopted that prece- 
dent and that rule, we ask lor the analogy to be 
carried out A Senator h is offered this resolu- 
t'on, not we. He states to this honorable court 
that he nad lorm-d an opinion and expressed 
it. Hcnc^, he offers ttiis resolution We think 
It is Very proper, after the decision ihat has 
be' n marJie. l4y that deci ion this court has de- 
parted from the great principle as we think, 
that is laid down lor the government of courts 
ol this description, and adouted the analogy of 
the statute. We deny that they can adopt the 
analogy of the statute for on- purpose and re- 
fuse it in another. Without further taking up the 
time of the honorable court, we leave the ques- 
tion with th" court. 

The President— The President is of the opin- 
ion that the counsel have already gone as lar as 
the rules pern it 'hem. 

Senator McElwee then ofl'ered the following 
resolution in litu, wiiich was adopted by a 
vote ol l.'i to 4: 

Resolved. That the counsel on either side have 
th rigtit to file in writing exceptions they deem 
sufficient in law to render any member incom- 
petent to sit on the court, and the court will 
impiitially try tlie same o»i the ayei and noes 
being called by the ' resident. , 

The Senate then adjourned till 9 o'clock Fri- 
day morning. 



IRIDAY MAY 10th, 1867. 
At 9 A. M.. Friday, May 10th, the court was 
called to order by the President. 1 he roll was 
called, and seventeen members found to be pres- 
ent. 

Senaor Carrigan read a letter from the Hon. 
J. P. Thompson, Senator from Warren, as fol- 
lows: 

Nashville, May 9, 1867. 
The Hon. J. B. Frierson : 

My grand-daughter died :t 3 P. M. this day. I 
leave immediately to see her, and ask leave of 
absence for a few days. 

J. P. Thompson. 

Senator Carrigan moved that leave ot ab- 
sence be granted to the Senator from Warren. 

The President thought it was proper to ad- 
journ until Monday, as he did not know wheth- 



33 



er the court could go on with the trial during 

the ab>ence ot" the senator. 

Mr. Trimble thought it due to the member 
that the court should adjourn. 

Leave of absence was granted Senator 
Thompson. The journal was read and ap- 
proved. 

Ml-. Ea-tthen presented the following pro 
test of the respondent, which protest v/as read 
by the clerk: 

In the JVIiitter of Impeachment Presented by 
the House ot Representatives against Thos 
JM Frazier, and now JPendiugbelore the Sea- 
ate as a High Court of Impeachmeut: 
The defendant, by eavt- of the court, respect- 
fully objects and urotests against being tried 
by the number of Senators now remaining on 
the court, since the exclusion by the cout of 
the H^n. B. Frazier, the Senator fr(»m Knox 
and Roane : Because the coui t is now < omposcd 
of a less number of Senators than that guaran- 
tei d to him by the constitution. It is insisted 
that no person cnn be impi-ached by the Con- 
stitution ot the tate, except for some crime 
commiXted in his official capacity; ail other 
crimes'and misdemeanors, from the higliest to 
the L)\vest, are to be tried by a court and ajury 
of twelve meu, and all that" twelve men must 
concur to convict. An impeachment is to be 
tried by the Senate, not by all the members, 
wnether pres^ nt and sworn or not, as by the 
constitution of 1796, but by all the membfrs 
present and sworn. Then it is conceived that 
this and all other deeudants lo impeacii- 
meiits have the constitutional right toretjui'e 
and deminci that every Senator present shall be 
sworn, no matter wl^at may be their 
bias, relationship, or o'..her condition, and 
whenever the Senators are sworn no 
one of them can be excluded, without the con- 
sent of the Senate, and the c:tuse be tiied by 
the residue, no more than a man could be tried 
by eleven jurors for murder. If a juror is re- 
lated or otlierv\ ise incompetent his place can be 
supplied, not so with a Senator. Hence, to meet 
cjntingencies, such as bias, relationship, or 
previously form d convictions, the constitution 
provides in effect tiiat one-third of the votes 
iipo I the trial may Lie thrown aw y o- not 
counted, and still tuC deiendant be convicted, 
if the other two-thirds concur in the convic- 
tion It it required t:ie concurre ce of all the 
Senators sworn to convict, then relati us and 
biasi^d members ought to be excluded, and the 
coustiiution would have provided some mode 
to supiiiy their places; for the framers of that 
instrumeat ).ever aid, nornever could have in- 
teutied to subject a cit zen to be tried upon a 
high offense charged befoi-e an uncertain ti ibu- 
nai , upon one that migut be increased or less- 
ened, varied or changeil merely from circum- 
st mce. Have I not a right to the opinion and 
decision of a Senator from Knox and Uomie 
as much as from an3' other district iu 
the State, and must I be deprived of 
that right becau-e I was so unfortunate 
as to have a brother representing that dis- 
trict? It was but accidental, it that accident 
was favorable to the defendant ami unfavora- 
ble to the prosecution. Is it right and m keep- 
ing with the spirit of our 'ree instituti.jus that 
it should be taken from the accised, and given 
to toe ac<-userV This advantage, thus accident 
al, is by the consiiiution given to the de end- 
ant, to compensate him lor the loss of a concur- 
rence ot all the members upon a conviction. The 
number of Senators sworn is vitally material 
to the protection of the deleudant, as thus by a 
sufficient number of exclusions, any defendant 
might be subjected to a conviction. For tnese 
and many other reasons that might be urged, 
this defendant insists that he cannot be consti- 
tutionally and legally tried by a less number 
than all the Senators present, and sworn, or 



that are present and ready to be sworn ; not that 
it is desire i or expected that the related Sena- 
tor s^^ould vote or take nart in the proceedings, 
but that he shall be cou"nted as one of the court 
in making up the result of any material ques- 
tion. Thos. N. Fbazier. 

Mr. Trimble then said: We do not admit their 
right to put in an argument on this question. 
The 27th section of article 2d of the Constitu- 
tion of the State of Tennessee contains these 
words : 

"Any member of either House of the Gereral 
Assembly shall have theliuerty to dissent from, 
and protest against, any act or resolve which he 
may thinR injurious to the public or to any in- 
divutual. and to have the reasons for his dissent 
entered on the Journals." 

I apprehend that this gives Senators a right 
to enter such a protest, but it does not go be- 
yond that. There is certainly no provision of 
the constitution giving an imiDeached party the 
right to put a pr^otest on the journal. This is 
an arguiF.ent, an<l the journal is no place for 
ai-gument. Arguments that, are made maybe 
published in the papers; but theieexlss no 
right for them to enter such a protest on 
the journal. In the Supreme Court in a 
criminal case, when ai-guments were 
made, did any one ever hear of such a thing? 
Here is a court of impeachment sit ing. The 
counsel come forward and put forth a protest, 
and ask that it shall be put on the journal. 
This is an argument. I would be indebted to 
t'^e gentleman if he would show any prece- 
dent for what he is asking. I know of no'hing 
in the law of the land and of no prceedeuc 
granting that right. 

Mr. Kast — I would state for the information 
o' the counsel that none of the counsel on this 
side saw that protCit until this morning. 

Mr. Trimble — J meant no reflection. 
Judge Britn— The consiitution provides that 
a man who is a member of ei her branch of the 
General Assembly of this State may enter a 
protest, it he gives his reasons for it I under- 
stand you to object to it as a matter of right. 
Suppose you regird itas objectiouaMe in some 
particulars, has not the defendant a right to 
give his reasons for his protest'i' 

Mr. Irimble— I admit the right 01 the counsel 
to prepare that paper or any other paper and of- 
fer it and assign tli ir leasons tor it and then to 
urfjethe question;; buti deny the right to have it 
enti red on the journal, of course, it is for the 
court to decide that matter. These journals 
are public pi operty after the adjournment of 
the t^enate. If we were to write argumejits on 
every case that arises, w^ at sort of a book 
would you have? I understand there is no 
reason for it 

Judge Gaut— It is strict justice for the de- 
fendant to enter his protest. I never taw it 
until I heard it read. 

Mr. Trimble— Cm a respondent file a pro- 
test to in ;irgume t? 

Judge Gaut— It comes in the shape of a bill 
of exceptions wiieuever such abill is tiled. 
Tliere is no appeal irom a decision of this 
court. When the defendant, through his 
counsel, offers a protest, it should be matle a 
partot the rei ord 

Mr. Trimble— I ask the counsel if a bill of 
exceptions is put on the record? 

Judge Gaut— What harm can this do? 

Mr. Kwing--!f counsel had drawn up this 
protest themselves, iierhaps it would have been 
different. The defendant himself is unwell 
this morning It he were in court this protest 
might be modified. He is not preseut. 

Mr. Trimble— We consent that you withdraw 
this paper. 

Mr. Ewing— What I have to say on this sub- 
ject, [ might as well say now. I would prefer 
that this paper should be presented in a differ- 
ent torm, although I desire tliat it should be 



34 



made a part of the record. Taking it alto- 
gather there have been but few impeachments. 

There have been five million of suits in civil 
courts, and in those suits I apprehend that rule-; 
have been established on firmer grounds th;in 
in courts of impeachment. This being a pecu- 
liar court and there not beirig so many prece- 
dents as in other courts, it may be that we ate 
not so well prepared. as we would be if we were 
discussing questions befoie an ordinary civil 
court. I apprehend, Mr. President, that be- 
fore we are done with the trial of this case, that 
■what I deem an error, with all due respect to 
the court, in excluding a niemljer of this court, 
will involve us in no little confusion and diffi- 
culty. 

If a member of the House of Lords h'.d been 
attempting to beelimnated m a trial in a 
high court of impeachmint, or if the thing hai1 
been attempted to have been done in tht^ Senate 
of the United States, we might have found a 
precfdent. 

A new mode of proceeding is now involved 
We ask in ^orae mauuer to snow upon the re- 
cord of this court ttiat wedo not acquiesce in 
the decision of this court which has undertaken 
to exclude one of its members. The defendant 
conceives himself to have been wronged by an 
adjudication of this court excluding one of its 
members. We may be driven to new meas- 
ures We may have to resort to a diflerent mode 
of defense. 

Mr. Trimble— What object is acromplished by 
putting this on the journal ? 

Mr. Ewing— The" object is to plice himself 
right, lie hws the right to defend himself bi- 
fore this coisrt, ami wlien the record is made 
up and becomes history, he has a right in tnat 
history to present himself properly. I say, then, 
may it please the court, that in the peculiar 
nature of this cotirt, in the peculiar circum- 
stances that have ari-en, in the w nt of all pre- 
cedent in regard lo the position we now occu- 
py, there arises a correspi nding riglit on the 
part of the defendant to place himself right. 
This, it seems to me, will stare every one in the 
face as strongly as ttie noonday sun. Jn Eng 
land there is uo court of appeal, excepting he 
House of Lords. There is no avpf^al from a 
judge sitting at nisi pi'ius. i he Clerk em oils 
every c aise that is tried. 

Judge Brien— This is manifest to my mind. 
We have filetl our answer, ana since that an- 
swer was filed a member of the court has been 
excluded. The defendant comes now by way 
of plea to the jurisdiction of the court. 

Senator Hall here moved to adjourn. 

Mr. Ewing said he believed it would accom- 
modate others as well as himself to adjourn 
until 11 o'clock Monday morning. Some gen- 
tlemen would not arrive here from Murfrees- 
boro until that time. 

The court then adjourned until Monday 
morning at 9 o'clock, with the understandi'^g 
that the President would not call the members 
to order until 11 o'clock. 

MONDAY, MAT 13, 1867. 

The Senate of Tennessee met as a high Court 

of Impeachment, pursuant to adjournment. 

Monday. May I3th, 1867, at ll>^ o'clock, Speaker 

Frierson in the chair, and nineteen members 

present 

The Clerk read the record of the fifth day's 
proceedings, which was approved, 

Mr. Ewing then said: Mr. President, I sup- 
pose it will not be out of order this morning tor 
the defendant to submit to the cour: the pro- 
test which he has revisol, as it was understood 
on Friday last that it would be submitted. 



The Clerk then read the following protest, 
which was presented by the respondent in lieu 
of that heretofore published : 

'The defendant, by leave of the court, re- 
spect ully protests against the action of the 
court in exckuling the Senator from Knox and 
Roane, and protests against the coiisequences 
thereof, and submits the following as his rea- 
sons : 

1st. ' 'Every oflicer impeached has the consti- 
tutional right to demand that every senatorial 
constituency shall be heard upon the question 
through their respective Senators, and the 
power exists nowhei-e to exclude auy constitu- 
ency. 

2d. "Thit the constitution or laws r ever con- 
templated in nny criminal prosecution, that the 
defendant should be tried by an nncertMin tri- 
bunal — ;*ne that might be increased or lessened 
according to a vote of the majority, especially 
in impea<'hment cases, in which cases the 
number to convict is declared and defined, oth- 
erwise the majority by exclusions could break 
UY> the court or exclude all supp' sed to be fa- 
vorable to the defendant, and t: ereby deny 
him the constitutional right of the twB-thirds 
rule. 

3d. "That the rule of two-thirds being 
necessary to a conviction, and the throwing 
away oi the vote of the orher third, was estab- 
lished in view of the suppo ed bias of some 
Senators, and in lieu of the exclusion of any 
constituency. 

4th. ''If accident has given a bias to any con- 
stituency favorable to tne defendant, he should 
not t)e dep'-ived of the b nefit of this accident' 
by taking it from him, and thereby doubling 
the beueflta to the accusers. 

"Thos. N. Feaziek." 

Mr. Duggan. one of the managers on the part 
of the State, then said: 

Mr. President and gent'emen -of the court: 
The protest being offered from the other side, I 
do not know that it would be competent for us 
upon our side to say anything. But I desire to 
submit a few remarks to the court They have 
a right, a- I understand, to open; and let them 
say what they desire to say. I desire to be 
heard on this question, and I think I can make 
it as clear as th" noonday sun. I take my seat, 
Mr. Piesident to hear from the other side. 

Judge Brien— On Fr day last we s:iid all we 
expect to say on this subject. We don't pro- 
pose to argue it any further. 

Miv Trimble— May it please the court. I un- 
derstand the counsel for the respondent to claim 
the right to enter that paper, which is in the 
nature of a (irotest, on the record of the court. 
We deny that right utteilv. The question was 
argued the other day before the court, and if 
the- decline to reargue it, we decline to ar- 
gue it. 

Mr. i''ast— I desire to read the following re- 
port of what Mr. Trimble said on the subject. 
[Mr. East then read the following from the 
Niishville B.inner:] 

" Mr. Trimble could see no reason for its in- 
corporation in the minutes. It was an iudis- 
put djie right of the respondent, and the mana- 
gers on the part of the S;a'.e did not intend ob- 
jecting to its admission at the proper time." 

Mr. Trimble-I conceded the r gtiton the part 
ofiounseito offer any paper, but denied that 
every particular paper shDuld be put upon the 
minutes. These newspaper reports are gener- 
ally very correct, but there is occasoually a 
misaupprehension. This is a misapprehen- 
sion." 1 regard it as veryextraordinary to as- 
sert the right to protest in this way. Where 
does that right eome from ? The fact, which 
you say the Senate has decided incorrectly, is 
upon the journ.il. Then, in point of law, 
it follows th.it it is wrong. You are ro 
state the simple iact, the simple 



35 



act, that the Seniite had done, and then 
bay, we except to that. If that were all you 
propose, the matter would be placed in a dit- 
fereiit light altogether. Vou have not aright 
to do that any more than a criminal in a crimi- 
nal court or in the Supreme Court would have 
a right to put upon the minutes an objection 
and an argument of the counsel. But as the 
comise' on the other side have declined arguing 
this question, we decline to re-open the argu 
nient. It is submitted to th ■ Senate to decide, 
ana when the Senate decides it, I suppose that 
is the end of it. 

I'he President— The matter is submitted to 
the court for its decision. The quesiion is, 
shall this pape , submit' ed by the counsel in the 
form of a protest, be placed on the record ? The 
Clerk will call the roll. 

Mr. Ewing— I would suggest, Mr. President, 
may it ))lease the court, that this may be al- 
lowed to be made a pait ot the record. 

Mr Trimble— Will, that is the same thing, to 
be made part of the record, as to go upon the 
minutfs. 

Mr. Ewing— No, sir, the gentleman is mis- 
taken ; a bill of exceptions don't go on the min- 
utes. 

The President— There seems to be a differ- 
ence of opinion lictween tlie counsel in I'efer- 
encc to the matter before the court. The Pres- 
ident uuder>too 1 the question to be that the pa- 
per go on the record. 

Mr. Ewing— Yes, sir; to be made apart of the 
record of the cause If we understood each 
other exactl v' about it, it might be imraiteri.il 
as to the precise manner in which the question 
should be presented to the court, lint we un- 
derstand this to be in the naiuie of a bill of 
exceptions, an exception to t le ruling of the 
couit in a 1 o'.latei-ai matter pending the trial. 
That exception does not goon tic mmute> o> a 
court ordinarily, but it becomes a part of the 
record m the cause; and if afterw ird it sh u d 
b come ueressary to make a motion for a ni w 
trial, or any other motion might be theivafter 
maile liefore tiiis couit, tlien itshoiisd be on the 
record that the "ourt might look .at it. The 
proceeuing> in the English courts, as I st tud 
on Satuni y — 

Mr. Trimble — If the court please, the gentle- 
man declin d to argue this questiop, iind the 
decision of the court is just a;iout to be made. 
One member of the court has given an opinion. 
Then, sliall we argue the question? 

Mr. E wing— I am only n"w piesenting a 
reason why this pap-'r shoud be presented in a 
certidu form, and the reason — 

Mr. IJuggan — That is an aritument. 

Mr. Ewing— It may l^e calleu an argum' nt or 
by any other name. It is the reason why it 
should be put in one form and not in another. 
The President of the court was putting the 
quesiion, as I thought, in a form tliat did not 
embr ce the nature of the objection we made 
to the ri ling. 

Mr. Triiiible- 1 would a'-k the counsel it his 
object is not to put it on the j'lurnal. 

Mr. Ewing— In the end it will be to put it on 
the journal; and that is what I mean— to make 
it a part of the record. I intend, so far as I 
can, with the consent of the ciurt bytheruling 
of the court, to put this upon the record, but I 
do not mean that it is to Ije entered ou the min- 
utes of the day. That is not necessary to 
make it a part of the record. That is n(»t 
necessary to entitle it to enrollment; or if there 
were a court of appeal, to take it from this court 
to a higher court, the record would be in- 
coir.piete wi too tit, it. Then we ask that it may 
be mai'.e a partof the record. If the quest on 
is put in tnat way we will be sac sHed. 

The President— In the remarks of the coun- 
sel the President does net see but what the ef- 
fect is the same, ana does lot feel able to pre- 
sent the question to the court in any other form. 
The question before the court is, as I stated be- 



fore, shall this paper be placed on the journal as 
part of the record V 

The vote was then taken, and by a vote of 6 
ayes to 13 noes, the court refiiseil to allow the 
protest of the respondent to be placed on the 
record. 

Those voting in the aflirmative were: Messrs. 
Carrigan, Johnson, McKinney, McFarland, 
Smith and Thompson— 6. 

Those voting in the negative were: Messrs. 
Aldridge, Bossou, Cate, Hall, Kieth, McElwee, 
Nelsou, Powell, Pattersun, Senter, Spence, Lob- 
in son and Speaker Fricison— 13. 

When Senator Senter's name was called, on 
taking the abo ve vote, he ai Ocre and said : 

Mr. President: I desire to state tiiat I have 
no particular objection to the content? of this 
paper; but if we are by our action now to es- 
tablish aprecedent that is to govern us peihaps 
in e>. ery stage of this case then I object to it, 
for the "reason that every object ion nuiile by the 
defendant in this case might with e<jual propri- 
ety be asked to be put on the journal, either as 
an appendix or as part of the record. 1 sha 1 
vote no. 

Senator Thompson's name being called, he 
said: 

It seems to me that we ought to concede to the 
defendant every defense it is neces-ary fi;r him 
to in:xke. This is an extraordinary' curt. I 
I'on't think that the same strictness or the same 
peculiar oi^ijections should prevail in this court 
as in courts sitting under the common law. 
Therefore i vote to place this paper on the 
record. 

Mr. Trimble— We are ready, if the court 
ple.ase, to proceed now with the proof in this 
cause 

M r. East— Leave has been given us to present 
exceptions to members of the cenate. Thuse ex- 
cept i.jiis are being prepared 

Mr. Maynard— I will ask the Clerk to read the 
concluding entry on the jourual of Thursday. 

The clerk complied with the request. [The 
record stated that the Senate adjourned till the 
following morning, so that the counsel for the 
detendant could then present their exceptions 
to members of the Senate.] 

Mr. Maynard— I SU' mit, Mr. Pr' sident, that 
having adopted that resolution, and haring ad- 
journed till the next day, so as to give them an 
opportunity to present except ons, and no ex- 
ceptions having be^^u presented on th.' follow- 
ing day, that the time is now past beyond that 
stage, ;ind that we should proceed VT-ith the in- 
vestigation of toe case. 

Mr. Ew ing— 1 did not suppose we would have 
this ditticulty, Mr. Presii ent Wo seemed to be 
111 a very good humor on last Friday moining; 
au»I when it wa'; announi ed that one of the 
members of the com t wa absent on account of 
the sickness of his relative, every one seemed 
disposed at once to proceed no further with the 
ca-e; and it was stated that, in deference to 
that member of the court, the court should ad- 
lourn. After some conversation, pro and con, 
Mr Trimble requestea that at all events, the 
pro'est, which vm hadc'aimed the rightto offer, 
should be preseutea. Thi-t was the first thing 
in order. The prote t that had been presented 
was considered as noo enbracing, perhaps, all 
that Wits desirable, and the defendant withdrew 
that prottst and drew up one at greaer length. 
When Mr. Trimble called or that pioti stit was 
presented, because we had no other ready, and 
it wa= remarked at the time that the first pro- 
test was not exactly what we tlesired to pre- 
sent. There was discussion upon it though, 



36 



and pendine that discuss'on the court ad- 
journed. I had in my pocket theu drawn up 
the oliject:ons and exceptions to the sitting of 
certain members of the court. They would 
have been presented but for the adjournment. 
That was the only reason they were not pre- 
sented. 

Mr Maynard — The statement of my associate 
counsel, as I recollect ic, was this: When we 
sjsoke of adjournment is consequence of the ab- 
sence of one of the members of t.he court, I 
think he said. "If there are any exceptions to 
any of the members ot the court to be present- 
ed, let thmi be presented first, before we ad- 
journ Then the paper was submitted to the 
court and was read, on which discussion 
arose. 

Mr. Ewinaf— That is triie, but Mr. Trimble 
said he wished the protest to be presentt^d, and 
pending the discussion on the protest the court 
adjourned. Theretore, we did not get to the ex- 
ceptions. 

Mr. Maynard— Well sir, in 'he spirit we have 
pursued so far, and afler consultation wiih my 
associate (ounsel, we lorbear t> press this 
point in the case. If the gentlemen have any 

• exceptions to submit they can offer them now, 
if the court is willing. 

Mr. liwing — Well, sir, I will have them pre 
paied in a few moments. I wish to make a 
change in them, and .that is the reason why I 
spoke. 

The proceedings of the court were here sus- 
pended lor a ew moments, while the counsel 
for the defendant was writing out his excep- 
. tions to members of the court. 

Shortly aiterwards Mr. Ewiug said: May it 
r please the court, we present exceptions to two 
I members. 

The Clerk then resd the following: 
State of Tennessee vs Thos. N. Frazier, Judge, 
et'j. — Impeachment be ore the Senate of Ten- 
nessee — The respondent, under resolution No. 
SO 01 the court, files the following excep- 
tions: 

He excepts to the sitting in said cause of the 
following gent emen as membei's of the court 
V z: W. K. Hall andJ. Powell. Heexceptsaud 
' objects to the said W. K. Hall's sitting as a 
member of the couit: 1»l, Because, as respond- 
ent is informed aud believes, said Hall was not, 
at the time ol his election as a member of the 
Senate, a resident ixnd citizen of any one of the 
counties which he purports to represent as a 
membsr of the Senate aud ot the couru, but he 
was then, and had been tor some time previ- 
ously, a citizen and resident of the Sta;,e of 
Kentucky. 2d, That said W. K. Hall is not 
now, and was not at the tune he was SW' rn in 
as a member ot the court, a citizen or resident 

• of any one of the counties he purports to repre- 
sent, but is now, and w.s when sworn, a resi- 
dent and citizen of Kentucky. Respondent 
asks respectfully that said Hall answer upoa 

. his voir dire whether he was, at the timi^ of .his 
election, and for a year immediately previous 
thereto, a resilient of any one of the counties; 
■whether he was not then, and is not now, a 
resident of the State ol Kentuiky ; whether his 
family is not there now, and whether it has not 
been there for three yeais last past or less; 
wheiher i,e has not a dwelling house and house 
Ol business in Kentucky, and whether he has 
not voted and done other acts as a c.tizeu 
thereof. 

He excepts and obje ts to the sa'd J. Powell 
sitting as a laemlier of the court. Because, as 
respondent is informed and believes, the said 
J. Powell had, previously to the sitting of this 
court, formed and expressed .u ()|)iniou on the 
merits (jf this cause hostile to respoii lent; that 
he had said to membei s of the House of Repre- 
sentatives, or a member thereof, while the 



question of impeachment was pending, "Put 
the impeachment through your House, hurry it 
up, send it to our House, and we'll put him 
through," or words to this effect, meaning, as 
respondent is informed and believes, that the 
Senate would convict resuondent liespoudent 
respectfully asks that saicl Powell answer upon 
his voir dire whether he had not formed and 
expressed an opinion as above st^ited, aud 
whether he had not expressed himseil in sub- 
stance as above stated, to some member or mem- 
bers of the House of Reprtsentatives or to 
some other person. 

For these reasons aud causes respondent ex- 
cepts to and objects as aforesaid. 

Thos. N. Fraziek. 

Mr. Trimble -Those exceptions we regard 
as insufficient in point of law, and if 'he gen- 
tlemen wish to argue the point, we will argue 
it. It is suggested to me tbat they be disallowed 
as sullicieiit reasons lor the purpose set forth 
in these exeeptioQS. The first exception rais s 
an objection to Senator Hall. We say that that 
exception is insufficient in point "of law to 
render h^m incompetent; and we suggistthat 
the exception raised to Senator Powell, is also 
insufficient in point ol law. Perhiiis it is pro- 
per that this question should b ■ discussed be- 
loi'e the Senate. The presumption is in favor 
of every member of the court, aud if thi^y 
deny the competency of any member, of course 
they must show the incompetency in point of 
law. "We expect them to produce what author- 
ity they have, to show that members are incom- 
petent. Perhaps, as there wre two distinct 
questions involved, we had better discuts them 
iiue at a time. The first exception raises the 
question as to whether fcenator W. K. Hall is 
a Senator or not. 

Judge Gaul — VS'ell, we will take up tl i^ lirst. 
Upon ihat point, Mr. Speaker and gontleiui.u of 
the Senate, I refer to two sections o the second 
article of the constitution ol the State. Stctioa 
9 is in words following: 

"Sec. 9. No person shall be a V.eijresenta- 
tive unless he snail be a citizen of ihe United 
Sta'es, of the age of twenty -one yiais, and 
shall have been a citizen of tiiis r-tate lor three 
years, wnd a resident of the county he repre- 
sent.-: one year immediately preceding the elec- 
tion." 

Section 10 is in words following: 

"Sec. iO. No person shall be a Senator unless 
he shall be a citizen of the United States, of 
the age of thirty years, and shall have resided 
threeyears in this State, and one year in the 
county or district, immediately precediug the 
election." 

So far as Senator Hall is cone erued.we go to 
the constitution. The constitution creates this 
court, and but or the constitution this Senate 
would have no existence at all. This constitu- 
tion is the charter b.\ wliieh this court acts, and 
which the court is ilepeudenij upon lor its ex- 
istence. We have presented the ob ections ia 
good faith, on ihe highest grounds known to the 
la ,v of the land. To entitle Mr. Hall to be a 
Senator here he must be a citizen of the U ited 
States, and must have resided one year preced- 
ing his election in the county or Seuatoi lal dis- 
trict he represents. Tha' is the language of the 
constitution. We have presen ed ihcs'e objec- 
tions to the competency of these members, and 
the counsel on the other side object, which is in 
the nature of a demurrer. To sho\. that this is 
a legal objection, vie present the language of 
the constitution on that suliject. that a 
Senator must have resided in his coun- 
ty or Senatorial district for t\Vi Ive months 
next preceding the day of eletion. This 
objection goes further, by alleging that the 
Seaaior did not reside there at ti'e inline of his 
election— that he dill not resile in he county 
or senatorial district at the time he was sworn 
in as a member of this court — that he dues not 
now reside there, but that he is a citizen of the 



37 



state of Tennessee— that he is a resident of the 
State of Kentucky, having a business house and 
a dwelling house, and his family, in the State 
of Kentucky. The objection cominir Irom the 
other siite, bvway of o.iection,is in the nature of 
a demurrer." These excent'ons are submiited 
by the defendant who a-ks to be sworn on his 
voir dire- If the honorable court please, Mr. 
Speaker and Senators, in the history of civ 1 
jurisprudence and the administration of cr m- 
inal law (and this is a criminal charge, not a 
civil one) in Kngland, and in America, and in 
the United States, and in the State of Tennes- 
see, no precedent can be found where a man 
is to be tried by parties who are not 
citizens of his f-'tate. Not at all. But 
sunpose the gentlemen say on the other liand 
that this is a court sui generis, create' I by the 
constitution and whatever the constitution 
prescribes this court can do, .■and whafe ei the 
constitut on prohibits this court cannot do. 
The constitution creates this court, but, tliu con- 
stitution says that every member of this court 
shall have been a resident in liis Senatorial dis- 
trict twelve months preceding h^s election. 
This is the lanjiuage of the constitution. If 
these exceptions be true, then Senator Hall is 
not a comnetent member of this court, because 
he is forbidden by the constitution to be a mem- 
ber of this court If the honoral:)le court please, 
if the fact be so, if the exception be true, is 
not this a lingular question? Dots it not pre- 
sent a moiisti'os'ty, that a citizen living in an- 
other v^tate and doing business there, should 
be sitting here in judgment on the rights and 
liberties of a citizeii ot this State, who is in 
court ch rged w th a criminal offense and 
one that in its consequences is the 
hitrhest known to the land? Without arguing 
this case, but simply turning to the tdain pro 
visions of this constitution, it is said that a citi- 
zen shall be impartiallv tried. If our excep- 
tion is not true, the contrary will appear from 
the answer of the honorable Senator on his 
^oir dire. If it be true, the fact will appear 
and st'ttle th'S questionat once. As totheot ler 
provision of law, sections 40j2and 4003 of the 
Code read: 

"4002. Every white ninle citizen, who is a 
freeholder or householder, and twentv-one 
years of age is legiily qualified to act as a 
grandor petit juror, it not otherwise incompe- 
tent undir the express i iro vision oi the < o e. 

"40113. No person can act as a juror in anv 
case in which he is interested, or when either of 
the parties is conne t&l with him by alUnity or 
consanguinity within the sixth degree, comput 
ing by the civil law, except by consent ot all the 
parties." 

A juror must be a citizen. This court is both 
judge and jury, by reason of its peculiar organi 
zation If we are to draw any analogy from the 
proceedings of crimunl courts In t e State of 
Tennessee, then a man who is not a citizen of his 
State, or his county, or the Senatorial district 
he represents, he is an incompet. nt juror. He 
does not represent Tennessee, he cannot repre- 
sent Tennessee while he resides in the State of 
Kentucky. But suppose we draw no anal 
ogy from those provisions of law, but go 
back to the principles of the constitution 
•which forbid him sitting here as a memberof 
this court, because at tiie time of his election, at 
the time he wa.s sworn in, at the time he s ts in 
j udgmen t on the rights of a citixen of the State 
of Tennessee, he is not and has not been for the 
last twelve months a citizen of the State of Ten- 
nessee. And if the honorable court please, if 
it is possible to present a question that is lorti- 
lied oy the fundamental law of the land, this is 
the one. I don't mean that this objection )>re- 
judges and preclu ies the honorable Senator, 
but if this objection is true, and tne honorable 
Senator is examined upon his voir dire, and the 
objection is proved to be true, then certainly 



the con?titution forbids him sitting a« a mem- 
ber of the court As it was suL'gested by the 
counsel on the other side that they prele to di- 
vide thn qu> stion as to the honorable Senators, 
I w 11 say noth ng mon!. 

Mr. Mayrard— The question in this case, may 
it please the court, is not as to the competency 
or incompetency of this person as a trer of this 
particular case. It goes lurther than whether 
he is a memb "r or not. It seeks to deny that 
he is a memberof the Senate, and to revoke his 
commission as a Senator I understand that 
que^tion to have l>cen decided. He was sworn 
in as a^^^enator at the meeting of this body, and 
has acted as such to this time, and his right to 
his seat is not and cmnot be tested by this de- 
fendant any more than the party m court could 
take up a law that was passed by the Senate 
through his vote aid raise the question 
whether he was competent to sit in the Senate 
and vote. Again, J understand the question of 
the competency of this Senator was raised 
by his own presentation of tlie facts 
in the case, whatevf r they were, before his 
brother Sena'^ors, at; a previous session of the 
Senate They solemnly passed upon it, and de- 
clared that he was qualified and entitled to his 
seat as such. Tiiai, being .'•o, the question is 
adjudged; ic is concluded; it is seitled. It is 
not one that admits of being moved at this 
time; and even if it were so, this defendant is 
not in an attitude logo into the election retu'^ns 
and qualifications of members of the Senate, 
it is not as a jud^e that this member is assailed, 
but as a Senator. The question is, is Mr. Hall 
a member of the Senate of the State of Ten- 
nessee ? That que tion I understand to bo set- 
tled and decided I will not go further in the 
argument to show upi)n what ground the ben- 
ate acted, what the peculiar facts were in the 
case, and the circumstances iimler which this 
government was reorganized, growing out of 
thedistempered condi ion of the times in many 
portions ot tlie State, when a nun who was 
known to be fri- ndly to the United Stales Gov- 
ernment was not permitted to stay at home, 
and one who attempted it and was elect' d was 
n )t permitted to return here to take his seat. 
His empty <h ir, draped with the trappings of 
mourning, is more eloquent than anything I 
could say. As I understand from my associate 
counsel, who has abundant means o' nnder- 
stauding this matter, this very question has 
been more than onae adjudged and settled at 
lormer meetings of the fcenate. It wixs decided 
th it Mr Hall was properly elected, that the re- 
turns were legal, and thai; his qualificati >ns 
were unexceptionable. Therefore this objec- 
tion, even if it came from a party able to make 
it, must fall. 

Judge Brien--Mr. President, this is a very 
strange argument to come from a g( utleman so 
learned in the law as the genileman who has 
addressed the court, 'i his i- a court formed in 
pU'>uai ce of the constitution of t e^tate. What 
IS this court here for? To decide whether the 
iletendant atthe baris guityol highciimes and 
misdemeanors. This is a criminal prosecution. 
What was this Senate before it was constituted 
a court? Parties were elected .to represent Sen- 
atorial di-t icts. Being members ot the Senate, 
tliey are competent to be transf rre-i into a court 
of impeachment. They were so trausferreii— 
upon what basis and idea? Upon the idea and 
the constitutional basis that hey were legiti- 
mate memliers of the Senate, not only at the 
time of their election, but that they continued 
to be such at the time they were sworn in here 
as a court, to try whether the d' fendant he 
guilty or not. These gentlemen tell us that 
nobody but citizens of the State of Tennessee 
can try this c se. Do they mean to say that 
when a man was properly elected a Senator, 
and properly qualified to h^dd the oflice, and. 
afterward left the United States and became a 



i 



38 



ctizen of Great Britain or any other country, 
he could be regarded as a citizen of the 
United States? Unquestionably not. H e 
mu.st not ouly be a citizen of tlie United 
Suites, bat lie must be a citizen and 
resident of the State of Tennessee. 
Will anybody say then, that although the par- 
tv rrniy bave been a resident aud a ciiizen of 
Tennessee at the time of bis electi'^n, and hav- 
ine: afterward rpniove i to Kentucky and domi 
ciled himself in Kentucky, and became a citi- 
zen and resident of Kfintucky before he was 
called upon to be sworn as a member of this 
court, that be is still a member of the Senate 
and can sit upon a trial like this? If it be so, 
t^ien your const tution has no moaninof at i- 11 
It is as India rubber, that may be stretched and 
contracted. The constitution says that he must 
be a resident and a citizen of ihe btate of t'en- 
uessee, and ot the district from which he is 
elected, lor a certain number of ye rs before 
he is e'eotnd Will it do to say that he can g) 
into nno'her St ite, and come l)ack here to rep- 
r< sent his district in the State of Tennessee, and 
more esjiecially to sit sis a member ot tlie court 
upon a trial lo ascertain whether a high 
funct onary of the government is guilty 
of high crimes and misdemeanors or not? 
The gentleman says his competency was pre- 
viously decided by the teuate. I do not know 
how that may he. The gentleman says it was 
so. Suppose the Senate, at an early stage of its 
organization, may ' ave determined that he was 
a qualilied memoer of the Senate. Kid they 
make the question when he was sworn in as a 
member of the court, whether he was a citizen 
of the ttate of Kentucky? If thev dcteriiiineil 
he was a member of the court, although a citi 
zen of Keiituc'y. they determined wrong. 
Their determination was in violation of the 
law, and that we propose to correct in th'.s trial 
now. If the Senator is a citizen of the Stste of 
Kentucky, and resides there, you coubl just as 
well take anv other citizen of the State of Ken- 
tucky, and try the H'lU. Thos N. Frazier, as 
to tike the Senator of Tennessee. Suppose t at 
in the organization ol the Senate, the Senate 
should have dcterminel, as they were the 
judges of the qualitications o their own mem- 
bers, tliat he was (luabHed to act as a Senator. 
Does the gentleman mean to say, thjt becausn 
the senate so determined, that when a 
Senator comes to be sworn in, trie impeached 
party has no reason to obiect to him because 
Che .-enate may so determine? If theydo, then 
we respectful iy s-ay, that they insi'it upon what 
is not in accordance with the law. ih^y say 
that we are precluded from this, and the argu- 
ment on the other side is, tliat because the Sen- 
ator has heen sworn in, there ore he constitutes 
a member of the court. The gentleman don't 
remember that only the other day an ofyection 
was mid to a member of the court, and he was 
excluded from participating in the delibera- 
t ons of this body, and yet, when we make the 
obiection th<'y say you are too late, he has been 
sworn in. [Mr. Miynard — this o • ection is to 
Mr. Ha'1'8 qunlifications as a Senato-.l Mr. 
Brien— The gentleman stated distinctly that be 
was sworn in as a member of the court. 'Ihis 
rule ought to work on both •ide-. We nsisted 
iiiat the member who wasexcude I oiiitht i ot to 
be excluded. The Senate determined otherwi-e. 
We said that he had been sworn in and 
taken his s at, and that they had no power to 
exclude him excejit for something th.it he had 
done th-t rendered him unworthy, ^ow, when 
we make an objeetiou to one who, as we say, is 
not a member of the court aecordmg to the con- 
stitution, they say that it IS too late, that he 
was sworn in MS a Seu'it >r and then swo^n in 
as a member, and that there'ore he must ne a 
competejit member of the court and a qualified 
jurortotry the respondent Senator frazier, 
who was e.vcludet, wa> sworn in in the same 
■way. He was s wo; n in as a Senator and as a 



member of the court. Nevertheless, he was ex- 
cluded But now they say that this Senator 
was sworn in, and that this goes to his com- 
pet''ncy. Suppose, Mr. Pi esideat and this hon- 
orable court, that since Senator Hall wa^ sworn 
in as a member ol the court he had renounced 
his alleeiance to the United States and the State 
of Tennessee, and had taken an oath of alle- 
giance to another government, would he then 
be competent to try this case? Tite const tution 
contemplates that he ^hall be a 
citizen of the United States; th»t 
he sha 1 be a resident of the State and 
of the distrist in which he proposes to act. 
Would it not be exceedingly absurd to say that 
he can represent his .-state witnout the proper 
qualiheations on atrial of impeachment? Now 
m trials of criminal cases, and these gC' tlemen 
have adopted that m de, we would only have 
to ask the quest'on, are you a householder, or a 
free holder in thecouptyo Davidson. "lam 
not." That is stitiicient to exelude him as a 
member of this court. We might simply ask him, 
the Sen .tor, are you a resident of this district 
that IS said to be represented by you in this 
court? "I am rot." That excludes him. To 
whom is he resiJonsible? To his consiituents. 
Has he any constituents in this state? He does 
not resile in this Sta'e. He owes his allegiance 
to a different btate, not the State of Tennessee. 
He represents no constituency here, and when 
we ask him the question, do you resid- in that 
district, he answers, "No, sir, I reside in 
the State 01 Kentucky " Suppose he answers 
that way. Then will this court say that he is a 
comiietent man to try another charge 1 With an 
oifeise, who is not a citizen oflhe State of 
Tenn'ssee. wh is not a resident of the di>tric,t 
he proposes to represent, and who is not.iuter- 
e>ted in its interests at all? It womd be a 
strange law tu me if such things could be. The 
laws of t' e State of Tennessee disqualifi'-s any 
man who is a judge from sitting in his own 
Case, or where he is related within the sixili de- 
gree The same laws require that a party, in 
order to be compcteut to try another for crime, 
shiU reside in t'le county where the offense was 
committed. The same analogv a|>plies to Sen- 
ators as well as to jur.jrs. 'iTie same laws pro- 
vide that no one shah sit upon a jury who has 
formed or expressed an opn ion as to the guilt 
or innocence of the party. That is the rule of 
the .Stale of lennessee. Thi n, this trial is to 
be proceeded with accoi ding to the laws govern- 
ing ci imiud trials, with the peculiar framework 
th' own around this trial. If a man that had 
formed or expressed an opinion could not be 
permitted to sit on a trial in a case involving 
life, liberty or character, would one be permit- 
ted to sit here who s not a resident of the State 
of Tennessee, who represents no district in 
point of fact in the State of Tennessee^ That 
proposition is so clear 'o my mind that I don't 
see how to argue it. 

The hour of one having arrived, the Senate 
adjourned until nine o'clock on the following 
day. 



TUESDAY, MAY 14, 1867. 

The Court met at the usual hour, Speaker Fri- 
ersou in the chair, and nineteen members pres- 
ent. 

The journal was read by tbs Clerk. 

Mr. Ewing then said: Mr. President, I would 
suggest that the record does not show that, 
instead of issue being taken upon exceptions, 
they were set down for argnment. That is what 
was done, I understand, Mr. Trimble. 

Mr. Trimble: I am just drawing a reply to 
the exceptions. It is only a b'g il question. We 
say that this has all been decided, and that the 



39 



exceptions are not competent. We say that 
thev are insufficient in law. 

Mr. Ewiiig— Tliat is the statement I wish to 
appear in the record that we are now trying 
the question of the sufflciency of tliese excep- 
tions in point of law, supposing them to be 
true. 

Mr. Trimble— I want to put in a paper in re- 
ply to that. Th3 quijstion is simply one of 
law. 

Mr. Ewing— Entirely. The exceptions a-e 
made upon this state of the case. If ii plea be 
made in a court of chancery, bv vay of illustra- 
tion, which is upon its fnce iusullloient to ne- 
maiid a reply on the part of the otht^r party, it 
is set down for argument as a question of law. 
If the issue is taken upou it, tlien tlie (juestion 
of fact is tried. Now, so fur as the record 
shows, we are proceeding to try the facts in 
these exceptions, whereas they, for the present, 
waive any contest of fi^ct^, but admit the facts 
for the purpose of discussing the law question. 
It is now s t down for argument; that is all I 
desire. 

Mr. Mavnard— I thinlr the record ought to be 
made to follow ex ctlv the rule of the court es- 
tablished ouThursdiy. I will ask the Clerk to 
read that record. 

The Clerk then read the following rule : 

" Motion No. 20. Besolved by the Court, That 
the counsel on the respective skies of this case 
of impeachment have leave to file in writing ex- 
ceptions they deem sufficient in law to render 
anv member incompetent to sit as a member of 
the court, a'nl the court will respectively and 
impartially try the same." 

Mr Aiaynard— Th it is th"^ point. I submit 
tha'. the record ought to follow the terms of that 
rule, and that these exceptions were tiled by the 
counsel, and. the court proceeded to try the 
same. That is the language of the rule, and the 
journal should follow it. 

Jiidsre Krien— 1 mas-e this suggestion by way 
of correi'ting the record. In pursuance of that 
rule, the rerord should show thut the defend- 
ant's counsel did offer objections to 'he c .mpe- 
tency of some members, which, bein.f opposed 
by the other side, then came on for argument. 

Mr. Ewing— I don't agree with either oi the 
genilemen, though one of them is on my own 
side I say that we ar.? not trying those excep- 
tions. Trial always relates to facts. When w^e 
ofler to tile these exceptions, they admit every 
wofd of them to be true, but say they iireinsuf- 
flcient in point oi law. If the "court say these 
exceptions are insufficiert, then we come to try 
the que-tion of fact. Just let it appear so on 
the record. It is objecfcd to as insufficient in 
law. LMr. Trimble— We can fix up the journal 
afterwards.] 

Mr. Ewing— If we don't get this right, now, 
we won't get it right at all. 

The President — Will the counsel rsduce to 
writing what he wishes to have entered? 

Mr. Trimble — Let the journal be read, 

T.ie Cli-rk then read that part of the journal 
referred to. 

The President— Mr. Clerk, p'ease take the 
j-;urn:il to the counsel, and he will enter what 
"he wishes wiitti n. 

Mr. Maynard— The Clerk should keep his own 
journal. The counsel shouUl not wriieoa the 
joiirnal 

Mr. Ewmg — Of course I do not intend to do 
th tt. I intend to write on my own paper. 

Mr Maynard — I ask pardon of the court and 
the counsel. 

By consent of the counsel on each side, it was 
agreed that the following correction should be 
made on thejournal: 

'•That the exceptions and objections taken 
were insutlicient in law and proposed to argue 
this question." 

Mr. Trimble (State counsel) then presented 
the following paper, whicti was read by the 
Clerk: 



" In the matter of Impeachment of Hon. Thos. 
N. Frazier, before the Senate of Tennessee, 
sitting as a High Court of Impeachment. 
Ar.d now come th ■ managers on the part of the 
I'louse of Repres;'ntatives to conduct said im- 
peacfiment, and answer the exceptions taken 
l>y the impeached to the quiilification ofW. R. 
Ilall, a Senator, and say: That the qualifica- 
tions of the said .Senator Hall have already 
been adjudged and determined by the Senate 
of the htate of Tennessee, and bavin t.' been so 
deiermint d, cannot now be raised. Of which 
res judicata they are ready to prove." 

Mr. Trimble stated that the foregoing was 
simply a repliflcation. 

The President— When the court adjourned 
yesterday, the urRUcuent was proceeding in the 
ciise of the exceptions made by the counsel for 
the defendant. The court is now ready for the 
continiiation of that business this morning. 

Mr. Trimble— Are you going to argue that 
point ? 

Mr. Ewing— Judge Brien argued that point 
yesterday. I cannot see very well how we can 
ije heai-d, after we have had the close ; but I 
have something to say. I have a statute to read. 
Mr. Trimble— If the court please, I do not 
know if we can add anything to the arguments 
made yestei-day, but I will detain the court 
but a fcw minutes. 

Mr. Ewing— Mr. Trimble, I certainly do not 
wish to be guilty ottlie indecency of present- 
ing to you anything that might takejoii by 
surprise, but 1 don't suppose that you would 
be taken by surprise. 1 will just mention to 
you, however; that I want to read the statutes. 
Article 797 of the Cotle says, that any office in 
this State is vacated : 
"1 By the death of the incumbent. 
"2. By bis resignation, when permitted bylaw. 
"3. B*y cea-ing to be are>ident of the State, or 
of the district, circuit or county, for which h« 
was elected or appointed." 
Again, section 801 of the Code says: 
'• N'ltice of the removal of any officer from 
the Stat 'or from the district, c rcuit, or coun- 
ty for which he was elected or appointed, shall 
be given by and to the same officers as notice of 
his death." 

Sections 10 and 15 of the second article of the 
Consiitution are as follows: 

'• Sec. 10. No person shallbe a Senator unless 
he s-hall be a citizen of the United States, of the 
age of thirty years, and shall have resided three 
j-ears in tnis State and one year in the county 
or district, immediately preceding the elec- 
tion. 

" Sec. 15. When vacancies happen in either 
House, the Givernor for the time being shall 
issue writs of election to fill such vacancies " 

Mr. Trimble: I uppreheud that this statute 
does not apply in the ca~e The Senators' qual- 
ifications are pi'e crib I'd, and they hild their 
offices under tne statute of tlie State of Tennes- 
see, and not under an act of the Legislature. 
Besides, a Senator is not holding an office, for 
it is not an oMice. This is a statute providing 
for civil otHcers of the S;ate, and vacancies that 
may occur in 'dvil offices. But Senators and 
membersof the Hou>e o! Representatives have 
their qualifications and tlieir terms ot office 
prescribed by the Constitution, and the Legis- 
fitnre canuo't add anything or take away any- 
thing from the co:i>ti"tutional provision on that 
subject. The Constitution of Tennessee declares 
that a Senator shall b^ thirty years of age, shall 
be acitizen oi the United Stttes, and shall have 
been aresident of the disrriet from which he 
was elected, for a given period of time. Those 
are the qualifieations for a Senator in the State of 
Tennessee No actol the Le^rislaturecan change 
or take away those qualifications. A person 
having those qualitiCHtious and being returned 
to the Senate, and going into the Senate, and 
each member presenting his credentials, as Sen- 
ator Hall did, the credentials were then critic- 



40 



ally examined. I call the attention of the Sen- 
ate to the fact that the credentia's that were 
prcsenttd br the Senators elected wciecrit cal- 
ly examined. Senator Hall came with hi^ cre- 
dentials, not only his certiflcat-; of the Shei iff 
of the conniy, but the cei-tiflcate of the Stcre- 
tary of the Sta e and appeared in the Senate 
Chamb- r at its orffanization in April, ls65. He 
Avas adm:tted to his seat. The Sen.te tht-n ad- 
judicattd the qualilications of the members 
who presented themselves as m- mbers of the 
Senate. It wiis decided th^t he w=js a Senator 
of the State of Tennessee, and he tool; his seat 
a> such Senator in April, I860, and has held his 
seat from that time down till the present. 
The question, as I regard it, was thr-n 
adjudicated and settled. Your jou'-nals 
assert the fact that I have just stated. Your 
journals say further, that Senator Hall, having 
removed his lami y to Kentucky, like an hon- 
orable man came into the Senate, feeling proba- 
ably that it mierht be doubtful whether he was 
entitled to a seat. He laised the que tion him- 
self. The Senate considered in, and deci led the 
question. In my opinion they decided correct- 
ly that he was yet a Stnator of the State of 
Tennessee; that having been electe as a Sen- 
ator, with a) I the necessary qualifications, he 
shoud hold his seat for two years. That is the 
constitutional duration of the term. Having 
been elected and qualified, having taken his 
seat as a Senator, he was qualified tob. a Sena- 
tor for two years. Is there any provision in the 
Constitution which makes vacant the pi ice of a 
Senar -r or member of the House of Repre- 
sentatives, because the party has left the 
district, or because he may have gone 
into an adjoining Sta>e— I mean'in pointof law? 
There is no provision of the Coastitution of the 
State of Tennessee that makes the oflice v:i- 
cant foi any such reason. The framers of the 
Constitution could have m:ide such provision if 
they had desired If they had r^ garded it as a 
sutBcent reason why the oflice should be vaca- 
ted, they would haveprovi'ted for it in the Con- 
stitution of I tnnessee. There is no such pro- 
vision. Tbereibre, under the Constitution, he 
remains yet a Senator, until the expira.ion of 
his tc-ra of two years. I call attention again to 
the point that the Iramers of th^- constitution 
considered this question. They considered w-h:it 
should qualify a man as Si nator. They did not 
provide that a change from one district to 
another, or a change out 01 the Stite shuuld 
disqualify the Senai or. or r(!nder the office va- 
cant. No action of the Legislature cun add to 
or take away from the qualifications prescribed 
in the constitution. Then Sentitor Hall was a 
Senator. Now the question we raised 
the other day, admitteil the Senator- 
ship of the Senator from Knox and Roane. 
That he was a Senator then ; that he is a Sena- 
tor now, is admitted. But it is denied that 
although he was a Senator, he was competent 
to sit We deny utterly the power of the coun- 
sel on behalf of the impeached, to deny the 
senatorshipof any Senator on this flour. If it 
is competent for the counsel to raise that 
Question collaterally, they could raise the ques- 
tion that this was not a Senate. Suppose they 
"were to raise the question that this was not a 
Senate. They can raise it to be sure. They 
■would be heard it they were to raise that ques- 
tion, doubtless, but how long would it take to 
settle it The court might, perhaps, listen to an 
argument, but I am sure that this court would 
decide at once that this was the Senate of Ten- 
nessee. So in this case what righi has the 
couu^elto make ihe question upon tbe Senator, 
that he is not a Senator ? That is a question 
that the Senate might make, that the Senate 
did make, and that the Senate decided, 
but I deny the right of the impeached to say 
that theSen'tor from Dyer is not a Senator. 
'Why,sir. take the analagous case of the Supreme 
Court. Three judges are sitting in the Supreme 



Court -with commissions from the Governor 
of the State A man is put upen trial then for 
murder, and the court is considering tha' case. 
Wou'd it be competent IVr a criminal then to 
except to the competency of a judge sitting 
upon the Supreme Court, and to say that he was 
not a judge? Suppose that it so happened that 
the judgi'h id been driveu from his Home, as in 
the Senator's case, and was not permitted to re- 
turn to it, even af er therebdlion W'S • rushed, 
bi-cause he fears assassination. We know 
that this has happened. He has a commission 
from the Governor of Tennessee. The criminal 
charged with murder arises and objects to a 
particular member of the court and says. " \ on 
are not a judge; you went to Kentucky." I 
say he cannot make that objection. 'I'here is 
the commission from the Governor, with the 
broad seal ot the State, and he cannot go byond 
that. It is sudicient If that ju ge were a 
tela' ive, perhaps it misht be an objection, and 
that question might be raised, and pr perly 
raised; but I deny that it would be pro re r for 
him to question the commission which that 
ju(lge held. iJy wdiat right do you claim to go 
behind the commission ? I deny your j ight to 
go behind the commis-ion wdiich the Senator 
irom Dyer holds in his pocket. Perhaps 
he has not got it now\ Perhaps no 
Senator now upon this floor could produce 
his commission. But any Senator here 
may be called upon to produce his commission, 
if this objection may he made, and then by this 
constructi n. I snonose if his commission ( ouid 
not be produced he couUl not sit a^ a member 
of this coun. Now, sir, I deny this, and I would 
like to see the authority for it. The gt ntleman 
don't pieuud tliat there is any constitutional 
provision ihat makes this seat vacant, lie will 
not deny that a Senator is elected tor the period 
of two years, and that by virtue of that election 
he is incompetent. Now, then, if Senator Hall 
was duly and constitutionally elected, and ad- 
mitted as a member of this Senate, he remains a 
Senat ir down to this time. There is no clause 
in the constitution which vacates his ollice. 
There is no law of the land which vacates 
his office if this act which has been read 
by the counsel apolies si • ply to civil offices 
and not to men holding political stations. In 
fact a Senatorship is not an office. This ques- 
tion, 1 believe, has been adjudicated by the Su- 
preme Courtof the United States. I don't now 
remember the case, but it was decided that a 
m mberif -he House of Kepresentatives was 
not -in officer within the meaning of the law. I 
am reminded by my associate counsel ihatit 
was so dec ded in Blunt's casf>, that it was not 
an office. But even if it had been so decideil. I 
deny that the Legislature can, by any act, make 
a law by winch the qualifications of a Senator 
shall bu aclded toor taken from according to the 
Constitution. If this question may be made 
upon Senator Hall, it may be made upon any 
other Senator; in fact, the object which the 
counsel on the other side sought to accomplish, 
the other day, by resolution No. 19, t ey would 
acconioli h now by these exceptions which they 
have filed. 

They have the affirmative. Can they produce 
any piecrdent, can they show any <^olorof 
right, that a criminal at the bar of ttie Senate 
or the court of imiieachment can interpose the 
objertiou that one sitting and holding a com- 
mission as Senator is not a Senator? I utterly 
deny it. 

Mr. Ewing— May it please the court, it would 
have been very well the other day. it seems to 
me, if the gentlemen would have recollected 
what they urge so strongly to-day, that the 
constitution, and the constitution alone, fixes 
tlie qualifi" ations of the members of this court. 
That was our doctrine; and we insisted that 
the statutes, nor the law, nor precedents 
in other impeachments, could intcilere 
with the provision contained in the coustitu- 



41 



tionof the State, which defines who shall be 
juilses in ca-es ot impeiichment. We 
said then, and our opinion is not 
chingcil, thougrh we acquiesce in the de- 
cision of the court, that every man was a com- 
petent mcniher of the court who was a Sen itor ; 
and then when thev thought proper to object 
to a membpr of theSenate, who was, and is, a 
member of the St-nate, on the score that he wa~ 
a brother of tiie respondent, we replied that 
there was no such provision in the Constitu- 
tion of the State of Tennessee, and to that and 
tnat alone rould we loolj for qualificitions. 
Now, ue have had this matter aojudged in 
this cause, and it is obligatory upon us, and 
uijon the Senate. VVe have had it a Ijudged in 
this ruu^e tliat we may look out (.f this consti- 
tution lor the purpose of ascertaining who are 
competent, meml>ers of this court. Acquiesc- 
ing in t.iat, we wish to avail ourselves, upon 
our side, of the rights w hich we consider to 
arise out of that decision. We come also, 
then, and object to membi-rs of the 
court as being incompetent to sit in 
the trial of this cause. We do not say 
thattln J' are not Senators. That is a matter 
that theSenate may determine for itstlf, and 
may determine for general purpo es for the 
peopleof the State. The Senate alone, under the 
con titution, is the judgei f tliequal flcationsof 
its members. So tar as the public are couj.ern- 
ed m matters in which individuals are not in- 
terested, so far as questions of leg slation are 
concerned, the Si nate alone can judge in re- 
gard to the quiiiflcatious of its memijcrs 
So a gentleman wHo is a member of 
the Senate, by the determination "f that body, 
stands in the attitude ^jrjmct /a.ci« of n mem- 
ber of a court either supreme or inferior. He 
has his commis>ion from the proptr auttiority. 
The Senator has hiscomraiss'>n :I mean by com- 
mission not simply a paper, but his authority — 
to a' t as a Senator in regard to ontinary leg- 
islation n eve. y decision of the Senate. But, 
sir, if a judge of ihe Supieme Court should ob- 
stinately anti perversely persist in sitting to ad- 
judicate a caubC in which he was incompetent 
to sit, will the gentleman undirtake to say 
that a defendant who his -ippeared before him 
may not obiect to his competency by a proper 
procee'iing? 

Mr. Trimble — What I said was that he was 
not a Juilge of the Sui)reme Court. 

Mr. Ewing — We cannot oi ject that Mr. Hall 
was not a Senator at one time, his qualilSca- 
tions having been decided upon by the Senate, 
but we can object to liis competency o sit in 
this court in this cause. This is our objection, 
and low, for theflrst time, to flay we have had 
the opportunityofoffering this objection consist 
ent with our ideas of what is laid ilown in the 
constitution ui^on this subject. Until this court 
excluded one of its members for he vfus prima 
facie a member of the court till he was exclu- 
ded) we had held that the constitution said that 
ever member of the Senate was a competent 
trier of the question now heiore the court, and 
that .'ill were 'entitled to the r seats; and if 
the objection had not been made to Dr. Frazier 
and sustained, we should have made no objec- 
tion on the score that any other members of the 
court were incompetent, llutinasmuchas that 
it is now settled law in this case that objections 
may be made analagous to those made to mem- 
bers of the Supreme Court, we come with our 
objections at this the first opportunity. Then 
I ask again of the gentlemen and of the Senate, 
Whether it would not be competent for a man 
who was arraigned as a criminal beiore the Su- 
preme Court, upon appeal, to object to the 
competency of a member of that court, though 
he had his general commi sion to sit as a Sena- 
tor? 

Mr. Trimble— I admit that, but I deny that it 
cou doe objected thathe was not ajudge. lad- 
mit that a personal objection could be made to 



ajudge. but that he could not object to the 
judge that he was not ajudge. 

Mr. Ewing— I say, may it please the court, 
that we can niahe an exception to the com pe- 
ttucy of the judge, not that he is not a judge 
to try other causes, but that lie is not a jiulge 
to try this cause. As to the question whether 
this court may have power to try causes of oth- 
er descriptions, we have nothing to say. But 
this court has power to try no cause, except one 
of impeachment; and this is a court that 
may sit, or it may not sit. The Supreme 
Court is a perpetual court. It is a coui-t 
for the trial of all causes. This is a court 
ot impeach-ment for the trial only of causes 
of a specific character.. When it under- 
tike* to sit as a cnurt of inipeachn ent in 
regard to any i»articular individual, the objec- 
tioa to the competency of members of the court, 
or 01 the whole lourt, then for the first time 
can be made by him, and I say that oiijection 
can be made in the bnpreme Court in any 
special case. This court is sitting only as a 
court of impeachment. Now, may it please the 
court, we don't question the power of the Sen- 
ate to rieciile upon the qualifications of its mem- 
bers as members of the senate. For all purposes 
of legislation, for all the purposes for which 
Senators areeleced and qualified, we have 
nothing to do Bit we have a right, may it 
please the court, to plead and make object 6ns. 
When we are brought upon trial our rishts are 
different from the rights and responsibilities of 
the great body of the people that is reiirtsented 
by the Senate in its ■ oliective capacity. Our 
rights are special and peculiar. We ^tand here 
charged with an ofl'ense. AVe come to make 
our defense to that charge. We then ask for 
the Qrst time, having an interest to ask, being 
called on to ask, whether our triers are compe- 
tent to hold the oitce they have assumed. How 
could we have made this objection unless we 
had been brought against our will as a respond- 
ent or defendant in ■>, court of imueachmeut for 
trial here? When? Now, for the first tiaie, is an 
opportunity offered us to test that question. 
Have we not rights in regard to this matter as 
well as the great body of the people who 
aie g nerally interested in this questi n? 
Are we not specially interested? When 
our special inierest comes to be adju- 
dicated upon can we not be heard to assert, in 
reference to our rights. that although a man may 
be held by the Senate for purposes of ICiiisLi- 
tion a competent Senator, yet in regard to us 
we appeal to the Constitution of the State ©f 
Tennessee, and ask you to determine whether, 
under that constitution, though he may be a 
Senator as far as the public inrerests are con- 
cerned, and the Senate had adjudicated prima- 
rily upon his qualifications, yet that so tar as 
we are concerned to-day he is not a Senator, 
and never was to us a Senator, whatever the 
Senate may have chosen to do upon this sub- 
ject. Now, Mr. President, I apprehend that we 
would be in an exceedingly awkward position 
if an exception of this kind could not be made 
by way of oijjection to the court, when the 
righis of a particular individual are to be ad- 
ludicated. Let us suppose a case, an extreme 
case il you please, but one upon which we 
will be able to test the validity of 
the principle upon which ourexceptions are 
founded. Suppose this, that the Governor of 
the State calls upon the Legislature to assem- 
ble. Suppose, at the regular time wh-n the 
Legislature is to as-enmle, that, instead of 
m. n who have been elected by the people, there 
should assemble in the Capitol of the State of 
Tennessee a number of persons not elected by 
the people, not qualified to sit, citizens of a 
foreign State, Britons or Frenchmen or Hin- 
doos, if you please, and that they were by con- 
cert and understanding to agree that they were 
all Senators, and pass upon each others, qualifi- 
cations. Suppose one should say to another, if 



42 



you don t object to me, I won't object to you. 
One is sworn, and another and another, and 
they decide upon the quaUtications of each 
other, untd we have a, body which is incompn. 
tent under the law to sit either as Sen;itorsor 
as qualified judges upon an impe tchtnent. 
Well, with that the great body of the ^leople of 
Tennessee might have something to do 

Mr. Maynurd— Will the gentleman allow me 
to ask whether his illustration does not sustain 
the position taken by my associ ite com sel, who 
is nm in his seat at this m inient, that this ob- 
jection raised against the qualiflcati' n of this 
Senator applies in principle t ) the whole body 
of the Sena' e, and carried to its legitimate re- 
sult involv( s the right in the defendant to deny 
thut this is the Senate oi Tennessee, ai.d 
whether the objection that is takin to Senator 
Hall IS not precisely the same thing, thougti 
not to the same extent as would be a geneial 
plea, and whether the gentleman's illustration 
does not cover tnat ground exact'y? 

Mr. Ewing— The gentleman generally, in some 
way, gets out all that I intend to say. If he had 
waited, he would hj,ve seen that I was coming 
immediately to that point. I say, then, Mr. Fres- 
ideut, taking up the luatter where I was inter- 
rupted, that if a certain number of persons 
were to asseiuhle, and were to claim to be S n- 
ators or Ucpresentatives of the people of Ten- 
nessee, and were to shut their eyes, though 
they might be foreigners every one of them, 
and were to adjudge upon the qualifications of 
each other, and should theri by assume to e the 
Senate of the State of Tennessee, what then 
woud be the remedy? Suppose nobody chose 
to make it their especial business, bui if they 
had chosen to make it their especial business — 
suijpose that there was no mode known to the 
constitution and laws by which the question 
could be raised — how would you iirevent those 
persons thus assviming to nossiss the qualiiica- 
tious of Senators'?— how would you preventthem 
irom becoming Senators pri?n.«/cfcie at least, of 
the Senate of the State of Tennessee? I do not 
knowof any mode. But I.>~av, n^ay it (lease 
the courc, that if an assumpt on of ttiat descrip- 
tion were made, and iftiie grCiit majority of 
the Senate were citizens of the State of Tennes- 
see duly and properly qualilied, they were all 
subject to an otijectiou that they were not in 
factqualifle I as Senators for the trial of an im 
peachment, I ask whether that objeciion could 
be made Is it not too startling as a naked 
priposition that citizens of Kentucky, of anoth- 
er State, which is foreign to us so far as the Fed- 
eral Uuio . does not bind us together, so far as 
the domestic affairs of the State of Tennesse • are 
concerned, is loreign to its concerns, whether 
the proposition is not startling that a stranger 
from another State, a loieigu State except 
solar as we are bound together by the Federal 
Union, can sit on the trial of a cause in the Sen- 
ate of the State of Tennessee? Let us see the 
consequences. Here is a gentleman who is 
elected in the State of Tennesse as a Senator of 
the State of Tennessee. His qualiflca ions are 
passed U|. on; he is admitted into the .-enate. 
He removes to another State, but his position is 
ignored by the Senate. They choose to qua ity 
him. and all these facts recollect, are admitted 
in the prt sent state ol the pleadings, ihat he is 
a citizen of the State of Kentucky, and that he 
was such at the time he was elected. 

Mr. Trimble.— The gentleman must take no- 
tice of the journal, and the journal says the 
contrary. 

Mr. Ewing. — I admit all that. The f.icts are 
admit*eii that he was, though he is qualified 
here as a Senator, a citizen of Kentucky ut 
that time, and that he is now a citizen of lien- 
tucky. ^ow let us see, Mr. President, what an 
anomalous t osition we may be placed in b ■ al- 
low. ng a citizen of another State to become a 
trier of a criminal cause as a member of this 



court of impeachment. Suppose Mr. HaU— and 
I wish the gentleman to understand that no 
personal offense is intended to him, and that 
this is purely a question of aw; it is a ques- 
tion of our rights, and it is an objection tnat 
we make dimply upon our rights under t*ie 
law But if a citizen of Kentucky can be 
elected to the Senate, and his qualifications 
passed upon, and can be allowed 'o sit in the 
Senate, no may ri turn to Kentucky the mo- 
ment the s^'nate his adjourned, and he may be 
elected a Senator from that State for the State 
of Kentucky. He may be at the same time a 
Sen:' tor in tht' Stuteof Kentuckv and a senator in 
the State of Tenness- e Can that conclusion Vic 
avo de 1? You have th ought proper here to isr- 
nore ttie fact t- at he is a citizen of the State of 
Kentucky now, and also at the time he was 
qualified as a member of tliis body. Under 
this ruling he might be at thg sa'TC time sitting 
in a c nirt of impeachment at Frankfort and at 
Nashville Can that be evaded? Does not the 
statement of the proposition at once show thi.t 
in the very nature of things cit z^;nship is al- 
ways necessary to the holding of any position 
of trust, of honor, of profit, in a State, by any 
individual? But then, if that were the tact, and 
the Senate chose, either from ignorance of the 
fact or in violation of it? duty, to receive as a 
duly qualified member of this body a Senator 
for the general ])tirposes of legislation, I don't 
see any mode by whi( h the evU could be cor- 
rected. I do see a mode, Mr. President, by 
which, so far as our rights are concerned, so far 
as thd question of his sitting as a judtre 
in this court is concerned, how we can avail 
ourselves of the facts 01 the case, though they 
may have bee CI ignorelby the Senate in the 
reception of 0.1 e of its members. We go upon 
the laci.s as they are to-day. We go upon the 
facts as they were at 'he time the members of 
the Senate were qualiflet. and wesay in regard 
to Our rights thit no citizen of the f-tate of 
Kentucky can sit as a luemOer of this Court of 
Impeachment for the trial of our eau.>e, You 
way have done what you please in regard to 
hi.s qualifications US a Senator; but when you 
attempt to impose upon us what j'ou have done 
as members of the Sei.aie, when our rights 
come to be investigated and adjudica'ed upon, 
von have given us the corresponding right to 
iisk what are the facts in the case. We say, 
that, although you mav have determined th.t 
this gentleman may sit as a member of the Sea- 
ate, he cannot sit as a judge in this Court of 
Impeachment, because, as a matter of fact, 
he was then a citizen of the State of K' iilucky. 
Though the Senate has passed upon his quali- 
fications as a senator, ho was then in point of 
fact a ciizen of the State of Kentucky, and he 
is now a citizen of Kentucky ; and we come and 
mal;e objection accordingly. Now, such a 
thing as a vacancy may exsist in the Senate of 
the State of Tennessee There is such a thing 
I'S death, as resignation, «s removal. Then are 
we not at liberty to resort lo the statutes of the 
State of Tennessee in order to ascertain what 
constitutes a vacancy? Now the Constitution of 
the United States provides that impeachment 
shall reach to the trial of the chief execut veofli- 
cerof the United States and of allcivil ollicers. 
It was decided in the case of Blunt that he was 
not a civil oilicer, the constitution being that 
he- 
Mr. Trimble— He was not an oflcer within 
the legal meaning of the term. 

Mr. h-wing— Very well, within the legal 
meaning of tne term. Therefore he was not li- 
able to be tried by a Court of Impeachment. 
He was a Senator, and therefore not a civil 
officer under tne constitution. That must have 
l)een the substance of the decision. I appre- 
hend though, that, whatever may have beende- 
c ded, this is the substance of the decision of 
that Court of Impeachment, that Mr. Blunt, 



43 



who was arraigned before the Senate of the 
I'nited States, was not liable to be tr ed before 
that court, becanse he came not within the 
words "ft '6 constitution We have read from 
the statutes of the State of Tennessee what is 
deJined to be a vacancy in office. Now 1 will 
suppose. Mr. President, that the Senator irom 
Dyer was properly and duly qualified as a mem 
ber of the Senate, that he was then a citizen of 
the S'aie of Tennessee, and ihat we could not 
object I say I will suppose that we could not 
object t • him as a Senator unless something had 
Orcurred since his qualiflcaiion asameniier; 
but if anything had occurred since his ijua'iti- 
cation as a member of ihe Senate, by which he 
has lost his position as a member of the Senate, 
and whfU the Senate has net adjudged that 
question, because haviegonce adjudicated ujion 
his qualifications they have taken roJurther 
notice, and in fact he removes out of thr Slate, 
or he dies, or he resigns, then w* uld not tiie 
question o his seuaiorship be brough. before 
the en ate V 

Air. Trimble— The very thing M'e deny is that 
you can do it. 
Jlr. Ewing— I kn^w von are denying it. 
Mr. Patterson^ You have not shown any au- 
thority. 

Mr. Ewing — We think we have au- 
thoritv. We have thfi constitution and 
the hiws. We look at the statutes, and we 
say. if this m<mber were properly ad- 
mitted as a member of the Senate, that at all 
events he has now vacated that office, and is 
no longer either a member of the Senate or a 
member of this court. I believe I might call 
your attention to a case where a member from 
this county (Carter) removed to JSew York, and 
V as decided to be no longer a member of this 
boly. I don't recollect that any other cause 
was assigned. I understand he removed from 
this State to the State of New York. 
Mr. Trimble— Mr. Carter resigned. 
Judge Brien — > ot until after the election had 
taken place and his successor was elected 

Mr. Ewing— I uon't exactly know all the 
facts of tlii.s case. 

Air. Trimble — We have got the facts in this 
CMse 

Mr. Ewing— Ttiat is a good joke, but I din't 
think it w'li matter. So much for a pre'.edent, 
and that is all we ask in this case. 

Mr. rrinibie — It is not ailniitted that Mr. Car- 
ter va(^ated his seat by reason of removal to 
New YorK. 
Mr. Ewing — Well, an electi n was ordered . 
Mr. Trimble— A menriber who is now' present, 
and w ho was in the House at the time, s; ys that 
his seat was not cousidered as vacant until he 
actually resigned 

Mr kwiug — lean only say that an election 
was iield beiore the judge resigned. 
Mr. Trimble — :such is not the tact. 
Mr. Ewing— Well, I WdS only acting on the 
statement ot other gentlemen I nmstof course 
defer to the statements of cthei s. Judge Brien 
and Mr. East say the farts are so. 

Judge Brien — That is my recollection dis- 
tinctly. 

Mr. Maynard— I am to'd that the resign at'on 
was sent in at the suminer session, but that it 
was not accepted until the next eleciion. 

Mr Ewing— Was there any election in the 
meantime? 
Mr. Maynard— I am so informed. 
Mr. Ewing— Perhaps we can get something 
from the journals, if it is anything of impor- 
tance I was only stating this as a preceiient, 
as thought to be law in another branch of this 
very General Assembly, avd I never h; ard this 
double' I before. 

iMr. Trimble— Now, I will state to the gentle- 
man a case that is a preced nt, that occurred in 
18G1 Th :■ .^enator from Chattanooga changed 
his residence fiom Chattanooga afrer he was 
elected Senator, and sat here, and he went to 



Memphis. In January, 1861, he came back here 
to the called session, and sat as a Senator from 
Chatt inooga, having liis residence in aiemiihis. 
Accfirding to your theory, remov.il from one 
part of the State to anoM er would be the same 
thing as removal from one S! ate to another. 

Mr. Ewing— Nrw, may It please the court, is 
it pi ssihle that the gentleman will introduce 
the fact here, of a meir.ber of the Senate sitting 
as a Senator, that he hs^d clwnged his resiv!cuce, 
as a precedent upon which thi» court is to act? 
Mr nail has been sitting as a member of the 
Senate al this time 1 don't know whetheroue- 
halt of the Ser.ators reside in their respective 
districts or in the State I have not troubled 
myself to inquire 1 apprehend they do, as a 
matter of fa. t. But if the quesiio'^ had been 
made in regad to that Siuutor who Hoved 
from one p .rt of the State to the other, and who 
came hack and then offered to represent a d s- 
trict of which he was ucta resident, that would 
have been something I'ke a precedent The 
precedent I was endeavoring to quote was, that 
the Le.;islature had taken aci ion on the ques- 
tion, that they had undertaken to rearard as a 
vacancy the removal of ene of the mem- 
beis of the House of Representatives from this 
State to another State. What could liave 
been passt d over sub silencio at the time is not 
the question, because no question was made. 
And if no qut stion was made, the f.ict may 
never api^ear. The ma'^ter o' fact th^ n mu=t be 
presented in some shnoe, either to the Senate, 
to the House of Bepresentativesorto the court. 
But we come here to-day and iiress the ques- 
tion ; and say that a citizen of the Sta'e of Ken- 
tucky, whether at the time his qualifications 
were passed upon, nnd he was to all intents and 
purposes, so tar as the public interests are con- 
cerned, a Senator, that subsequent to that time 
circumsfances have changed. He may 
have been a Senator then, but he 
is now a Senator no longer. He has 
vacateei his office, atid as this matter Ims not 
been brought to the notice oi the court, we tiave 
a right noV to a judgment from tht m and that 
is whether this _j,entlemen, i he were a resident 
o! Tennessee at the time of his elcetion, if the 
Senate passed upon his nualifications, whether 
by removal 'rom the State be could still remain 
a mem' er of the court 'J he question was very 
strongly put by one of the gentlemen on the 
same side with myself. Suppose one of these 
gentlemen should tiave sworn allegiance to 
Queen Victoria, or to His Majesty Napoleon 
the Third, since he was qualified here as a Sen- 
ator, and that tVct were brought before this 
court, whether under the Constitution of Ten- 
nessee, and the laws in regard to vacancies, that 
man would be qua' ified, ha ving foreign interests 
and no interest in the State of Tennessee, and 
none even m the Uni'ed States, whether he 
would be qualified to sic as a member of this 
Senat^and this court whether we wouH not 
be bound to eliminate him, as another Senator 
has been eliminated, from the court When this 
question of vaca ncy copies to be settled by the 
Legislature of the State oi Tennessee, in pur- 
suance of i's general powers declaring what 
shall constitute a vacancy in regard to a legis- 
lator as in regard to a civil officer, what is to be 
elone; for Ihe woid vacancy in and of itself, is 
is subject to definition. What is a vacancy? 
Does el'earh makea vacancy? It is so said in the 
constitution. Does resignation make a va- 
cancy ? It is so said in the constitution. 
Does removal make a vacancy ? That 
is not alluded to. But ihe Legislature of 'J'en- 
nessce has undei-taUen, in the most general 
words that may be adopted, to say that any of- 
fice—and I wholly disiiffree with the gentle- 
men when they ^aV that the office of Legislator 
is not an office, because I do not know any 
other language to employ. I was obUged to 
say that tlie office of the 1< gislator ought to be 
vacant. I then used the words of the statute, 



44 



that^^ any office in this State is vacated by the 
death of the inoumhent, by his resignation 
when permitted by law, l>y ceasing to lie a nsi- 
dent o! his State, or of tlie district, circuit or 
county, lor which he was elected or appointed. 
Now, bringing bicli the attention of the court 
to rhe position that we occupy here, we say that 
this ollice is vacated I read from the constitu- 
tion that wheu(^ver va ancics happen in either 
House, the Governor for the time being shiill 
issue writs to till such va".an'^ies, and that then 
the Legi'^lature comes and undertakes to define 
such vacancies, and states that this shall auply 
to every ollice in the State of Tennessee. Cer- 
tainly it is as imporiant in reg rd to legislation, 
it seems to me, that a man should have an 
idem ity W'th his constituents, as that a petty 
officr. a cli rk or a ranger or a sheriff, should 
be identified with t:>c interests of tne peoido in 
regard to whom he undertakes to ict as an ofli- 
cer. Here is a man living in Kentucky, who 
has no iilentity of interest with the people of 
Tenne-see, and who is to be presumed to cire 
nothing for our interests. It is a matter of play 
to liiin it he is a citizen of Kentucky. This is a 
matter of deep, oi h:fl:h, of abiting interest. A 
man who has removed from one d sirict to an- 
other is siill ideniilied with the State, and hi- 
aetion may be looked upon wit^h some degree of 
a'.lowance, but iu regard to a man of a foreign 
Stale, who has no identity of interest with the 
people of Tennessee, we say that it would be 
an anomaly in judicial proceedings, in addi- 
tion to that starling anomaly to which ' 
brought the attention of the court, that he 
mighr, be atthe same time, according to the 
doctrine of the gentlemen, sifting in a court ot 
impeachment iu the town of Frankfort and in 
the tow ' of Nashville. Our objection is made 
as early as we can make it. We say that he is 
not a ci3mpetent judge, under the law and the 
Constitutiou of tne State of Tennessee, to de- 
cide thi^ case. 

The President— Is the court ready for the 
question? There teems to have been some dil- 
ler nee ot O'iiiion between the counsel in re- 
gard to th;^ pr-sentation of this question. The 
Pres dent will be g ad f )r the couns' I to de- 
cide, or to agree am^ng themselves in what 
manner the matter will be presented. If the 
President understands it, the question is 
whether the Senator is a competent jude in 
this court 

Judge Brien— I don't think really that that is 
the question, unless it is assumeif that all the 
facts stated are correct. We propose to inter- 
rogate the Senator in order to see whether he 
is or not a competent member. 

Mr. Trimble— The question is, Is the excep- 
tion talien to VV. K Hall, Sena*-or from the 
Twenty-third District, to -wit: That he is rot a 
competent judge in this court, well taken or 
not? 

Mr. Ewing — That will do. 

Some little debate here arose as to whether 
the counsel, reporters and spectators should re- 
tire under the rule. 

Mr. Ma^'nard— Ii I may be allowed to say a 
word I will state this ruie was adopted at an 
early sta /e <f the proceedings, and it was only 
doing what I suppose every court doe- that is 
compo-ed of more than one individual. Where 
a ca e is presented, the argument is heard, and 
the coui't retires for consultation to its con ul- 
tat ion room, where it delberates As in the 
Suiireoie Court, there are some questions pre- 
sented for theiiecision of which the court does 
not wish to retire. They are settled, perhaps, 
by a li tie consultation on the bench. 

Several Sen:ttors here stated that they de- 
sired to have the rule enforced. 

Senator Hall— Mr. President, before the coun- 
sel retire, I shall request that a paper whicK I 
have shall be read. 



Mr. Trimble— The time has not come for the 
use of that. 

Senator Hall — I don't know but that this 
would be a proper time, and I prefer it to be 
read. 

Mr. Trimble— I submit to the Senator that 
this is simply a rule of law, for the court to de- 
cide whether the exceptions are well taken. If 
the member is examined on his voir dire, then 
the facts will apijear. 

[It was decided that theru'eof the court 
should be enforced, and all but members and 
officers retired.! 

The doors having been opened, the Presidert 
announced that a majority of the court had 
voted not to sustain the exceptions. 

The Clerk then read the minutes, from which 
it appeared that the member from Dyer (Mr. 
Hall) " as excused from voting. The vote was 
t.aken by ayes and noes, and the court unan- 
imously resolved that Mr. Hall should retain 
his seat, as the exceptions to the Senator were 
not sustained. 

The President— The court is ready to proceed 
with the next case. 

Mr. Trimble here r>resentedthe following pa- 
per, which was read by the Clerk : 

"In the matter of the impeachment of the 
lion. Thos. N Frazier — before the Senate of the 
State of Tennessee, sitting as a High Court of 
Impeachment: And now come the managers 
on the part of rhe House of Representatives to 
conduct S;iid impeachment, uid repl.\ to the ex- 
ceptions taken by the impeached lo the compe- 
t -iiey 01 Hon. J. Powell, Senator, etc., and say 
that the reasons alleged in said exceptions are 
insufficient in law to disqualify the said Sena- 
tor P<nvell from sitting as one of the Jud«es of 
this Hisrh Court of Impeachment. Whereof 
they are ready to show." 

.lutigeGaut — Mr. President and gentlemen 
of the court, we don't intend to argue that 
question any further. We leave it to the court 
to decide. 

Mr. Trimljle — On the part of the Sta'e we re- 
fer to the authority relerred to the other day in 
the case of Pickerin,g. 

Mr. Trimble then read the following from 
the Annals of Congress: 

"Early in the trial a question was raised .as to 
the propriety 01 tiiose gentlemen viz: Samuel 
Smith, Israel Smith, and .John Smith, oi New 
York, who were durine the last se.-sion mem- 
bers of the House of Representatives, and voted 
here upon the question for inipeachini< Judge 
Pickering, sitting and voting as judges uijoa 
the trial. 

"Mr. Smith, of New York, wished to be ex- 
cused 

"Mr. S. Smith declared that hewou'dnotbe 
influenced from his duty by any false delicacy; 
thiit he, for his part, felt no delicacy upon the 
subject. The vote he had given in the other 
House to impeach Judge Pickering, would 
have no influence upon him in the court. His 
constituents bad a right to his vote, 
aid he would not by any act of his <!e- 
prive or consent to deprive them of tiij,t 
right, but would claim aud e.xercise it uijon 
this as upon every other qu' stion that might be 
submitted to the Senate whilst he had the honor 
of a seat." 

Upon the vote, it was carried by the usual 
majority. 

Mr. Trimble continued— The case is explained 
at greater length, but the substance of it is that 
members who sat iu the lower House and voted 
for the impeachment, and were afterwards 
transferred, must of course have formed and 
expressed an opinion. The court decided that 
nore of the members were incompetent. 



45 



Mr. Ewing- We have only to say to that that 
they were permitted to sit. It was our oijinion 
that Senat r Frazier was competent, but we say 
that, the court having decided that lie was in- 
competent, by the same rule they are bound to 
say that Senator Powell is incompetent. 

The court was then cleared The doors having 
been opened, the President announced that the 
court had decided that the exceptions to Senator 
Powell were not well taken. 

The Clerk read the vote, showing that the 
members unanimously voted that Mr. Powell 
should r tain his seat. 

Senator Mali— I feel it due to myself as well 
as the public, and for the information of the 
counsel on both sides, and the curt, that I 
should have entered on the minuti s a state- 
ment of my position since I have b en a mem- 
ber of the Senate of the State of Tennessee. 1 
would ask that the ClerK read my statement, as 
I believe it is necessary for my protection in 
the iuture as well as the r.resent. 1 want noth- 
ing hut what is fair, but I want my position 
undi rstood. 

The President — It is for the court to decide 
whether this be read or not. 

Ml-, i limbic— I would suggest t'lat the Sena- 
tor defer the matter until morning, and then 
pi esent it. It can be as well done then. Gen. 
Thomas is here in the library, and is detaiiipd 
fiomhis post. He is compelled to leave this 
evening, and his exam na ion will probably 
occupy ihe oalance of the hour. 

Senator Hall— It will take but a few minutes, 
I would like to have this ^tatement go in eon- 
uectien with what has already been done. 

Mr. Trimiiie — I would say to the Senator that 
his casein not touched at all personally. It is 
a question simply of law wnich the Senate has 
decided, au<! does not affect him in any way. 

ivir. Halt— I think it does, and for that rea- 
son I don't wish to be placed in a false atti- 
tude. 

Mr. Trimble — I am not oVyecting to its being 
read. would state, however, that as General 
Thomas is here in the library, it would be well 
to deter this matter till mori ing. 

Senator Sen er — i would sugge t lo the Sena- 
tor Iroru Dyer thit pernaps it will take longer 
than he anticipates There may be objections 
to Its being put upon the journal. 

Mr. Tr;m!ile— We dtm't object to its being put 
on the journal, btit suggest that the matter be 
deferred till morning. 

Mr. Hall then withdrew his request out of 
respect 'o the wishf s oi the counsel and several 
members or the court. 

Mr. Trimble here stated that it was tisual in 
such courts to have the testimony taken down 
in writing, and suggested that tl. M.(!;oburn be 
employed as a reporter, and sworn in as auxili- 
ary oiiicer of the c urt. 

Ou motion the Senate decided by a vote of 15 
ayes and 4 noes to employ a reporter, and H. 
M. -oburn was then sworn in by the clerk. 

The pvo-ecution out le part of the Stite then 
introduced Maj. Gen. Geo. H ihomas, as a wit- 
ness in the case 

The lollowingis the form of oath to be ad- 
ministered to each witness by the principal 
clerk of tiie court: 

You and each of you do solemnly swear (or 
affirm) upon the Holy Evangilist of Almighty 
God. that th^ evidence j^ou shall .itive to this 
court in the ca-e now pending in the Senate of 
Tenne-see, sitting as a High Court of Impeach- 
ment, in which the people of Tennessee are 
plaintiffs and Thomas N. Frazier is dideadant, 
shall be the truth, the whole truth, and nothing 
but the truih, so help you Got. 

And the aforesaid oatti shall be administered 
by the principal clerk of the Senate. 



The vote on the question submitted was taken 
by a.} es and noes; ayes 19, noes 0. 

General Thomas was duly sworn by the 
clerk, and testified as follows: 

TESTIMONY OF MAJ. GEN. GEO. H. THOMAS. 

Examination in chief : 

Question by Mr. Trimble. (State counsel.) 
Were you in command of a Division as Major 
General in July, IStiO, General Thomas ? An- 
swer. 1 was. 

Q. And where had you your headquarters? 
A. At this place, atlNashvile. 

Q. Your permanent hea'^'quarters at that 
time weiehereat Nashville? A. AtNasI ville. 

Q. Were you here during the mouth of July? 
A. I was. 

Q. In command at this post? A. At these 
headquaiters. 

Q. Do you remember when the Governor 
issued his proclamation convening 'he General 
Assembly in extraordinary session? A. I do 

Q Do you remember the convening of the 
Legisliture at that time? A. I do. 

Q. Members were in the habit of calling tipon 
you, were they not? Were you at the Capitol? 
A. I don't think I was at the Capitol during 
the t me, but I saw members m town. 

Q. And knew that the General Assembly was 
cal ed together and about to convene? A. \es. 

Q Whiit was the state and temper of the pub- 
lie, mind at that tim •, as far as you can judge, 
here at Nashville? A. Juiiging from the — 

Question objected to. 

Mr. Ewing— May it please the court. I don't 
know whether that is a competent question in 
this case I don't think it is of any importance 
what the sta'e of tne public miml was at that 
time. I oliject, Isay becituse I tliink it has 
nothing to do with this cause. The deffudant 
i* ni t responsible by any means lor the state of 
the jjub ic mind at that time. He is a judge, 
and had to decide a question of 'aw presented 
to him. and whatever may have been the st.ite 
of the public mtnd at the time is whjlly imma- 
terial 

Mr. Trimble— We think it is material to put 
the picture as it happened in life befoe the 
mind of the Senate. I don't know how to place 
it before the senate except by describing it as 
we saw it at that time living und moving. I 
think that it is material to the result of this 
case to show what was the state or timp r, I 
don't say of the whole public, but the prevailing 
temper and dispos'tion of the publie, miud. I 
tliiiik is is material to show waat the temper 
and feel ng was, and to show that the impeached 
party knew it and telt, it. 

Juilge Brien— It certainly can be a matter of 
no importance in this trial what anyoodj^ else's 
actions may have been. The defendant is not 
responsible for that ot cou'te; but what may 
hiive been the state of the public mind at 
the time can have no influence upon htm one 
wav or the other. It might »pen up the door 
to prolong this trial beyond any limit that 
might be calculated upon. Supoosc that a 
wiine>s should belintroduced by tis to show that 
the public mind was one way. That would be 
the opinion of tbe witness, and it it was 'naterial 
at all we would have to introduce evidence to 
rebut it. A witness can only state tact-;, and 
the^e laots must be pertit-ent to the iss-ue we 
are to try. The issue we are to try is. -nhether 
Judge Frazier has been guilty of a felony as 
prescribed in the articles of impeachment. 
VVha'evHrmaj^ have been the opinion of the 
public mind can have no influence wnat.ver 
upon Judge Frazier. fie is not to be held re- 
sponsible for that opinion. He is to be tried ac- 
cording t« the articles of impeachment. This 
is just like any other crimiiml trial. The facts 
detailed against him must be pertinent to the 
issue, and must affect him and no one else. 



46 



Mr. Trimble— If the court please, I regard the 
question mat I asked — 

Judfre Brien- You will allow me to say a 
word? It was our obj*>ction to your question. 
Ad I want is to estai/lish a rule. The rule is 
that the objecting party has thf conclusion. 

Mr. TrimbU- — Vou reply and I rejoin. 

Judjre Patterson — Iftliec mrt please, the rule 
that h^'Ms in niaters of argument does not hold 
in regard to testimony. 

Jud;;'e Gaui— Mr. President, and gentlemen 
of the court: I see some lawyers here, members 
of this court. As to theoperiing and conclusion 
in tni« case, the State his it. but if we uialie an 
objection to tlie introduction f testimony, and 
state our objection, then the other side is to be 
heard, and we have the conclusion; and I ap- 
prehend there is no law\er in Tennessee who 
retlects a little on the question, that will deny 
that this has been the universal rule in all the 
courts. 

Judge Rrien— That is the universal rule 
tbrougliout the civilized world. 

Mr Trimble— I would like to see the true rule 
adopted. I am a liti^le rusty in the practice of 
the law. But tlie party who atUrms has the 
right to open and conclude. 

Judge Brien — We say the tr-stimony is inad- 
missible. That is the allinnativ.-. 

Mr. Mavnard— We put in an objection in re- 
ganl to the sufficiency of those exceptions to 
members of the court, and the counsel on the 
other side claimed the benefit of opening and 
concluding the ari'uraent. and did do so; but I 
don't imai;ine that it is a matter ot any great 
importance. We are not playing a game lor 
thel St tag. 

Judge Brien — This was done to put an end to 
constantly debating questions of this sort 
This is the rule established universally through- 
out the world. 

Mr. Ewing— I th'nk lean state how there 
maybe no d lliculty about it. All testimony 
Is competent unless it be objected to. Any 
questio'i now asked Gen Thomas is competent. 
If we don't object But if we do object to it 
we put ourselves in the affirmative. 

Mr. Trimble- We affirm a negiitive. 

Mr. Ewing — Yes, sir; but vou have aright 
prima faoie to put any question to Gen. Thom- 
as, ana if we don't object to it, it must be re- 
ceived. It we object we have the affirmat ve. 

Mr. Trimble— We will waive this for a few 
moments, and get the book ard see what the 
rule is. Whit i <!esiie to prove is a fact, and a 
great fact. It may not be a particular fact, but 
it is a general fact; the condition and temper of 
the city at the time is a fact, and must be 
proved like any other fact. The party can be 
cross examined ou the same fact; and I submit 
that we attempt to pr^ve a general fact in 
proving the state of the public mind. There 
was, for instance, a proclamation by the Go^er 
nor, convening the LegislatU'C o;i an extraordi- 
nary occ sion upon the matter of an amend 
ment to the con titution projio-ed by the Con- 
gress of the United States for ratification or 
rejection by the State I.egislatures, and which 
was objected to by the Prcsiicut. It raised two 
parties uU over the land, for and against it, ac- 
conijianied by the usual heat that characterizes 
politcal questions. That is the fact I wish to 
establish, and to show that such a 
t'Miiper anl disposition prevailed here 
at Nashville against this mea^ur- 
of the govrnment, against the action of the 
Legislature; and to show that there was an at- 
tempt lo break up the Legislamre >ind that 
this was generally known, and known to the 
iimieached party, and that under all these cir- 
ciimstanccs he, a juilicial officer, took a st^p 
(for him I think a fatal step) to assist in the dis- 
organization of the Legislature ard in the dis- 
organization of socieiy That is the general 
train of thought that has passed through mv 
mind. 1 wish to prove it and to recall the 



facts; and if I were capable of getting the 
witness to paint and describe the scenes that 
weie enacted here for ten or fifcc'^n or twenty 
days, I should like to do so. We expect to 
prove wh.tt occurred at the courthouse, the 
immense mass of people that were there, the 
high degree of excitement that existerl in that 
crowd when the ci>e was on trial, and that it 
rose, even in the temple ot justice, 'o applause 
when political c!ap-traps were thrown out. 
That is what we wish to prove. 

Judge Brieu— ^npp se, Mr. Trimble, that you 
wi-hed to prove pertinent facts that would be 
material. But suppose you conld prove by 
General Thcnnas, as you could by every we 1 
read man, the gre it prospect of a war in Eu- 
rope, what vvould that avail? 

Mr. Trimble— Nothing. 

•Judge Brien— Does that illustrate his guilt or 
innocence— that is, what occurred in tins city? 
If you wish to show tht Jurlge Frazier had 
anything to do with that, it would be perti- 
nent. 

Mr. Trimble— If Judge Frazier is not brought 
into connection with ih s passion, it won't hurt 
him. 

.Judge Brien— Suppose you could prove that 
.Judge Frazier was excitetl, unless you could 
prove some act he did, that would not amount 
to anything. Is a man responsible f ;r being ex- 
cit d? Is he responsib'e because be sees two 
men in a fight, and looks on with interest, but 
takes no pirt in it? I say the testimony is 
wholly irrelevant, even on the supposition you 
make. 

Mr. Trimble —I suggest to the counsel, that if 
the case of the State is to be cut up in this way, 
we will get nothing in. If we don't make 
all the links that constitute this chain, of 
course the cause falls; but we cannot 
make them in the single reply of a witness. 
That is one of the links we propose to establsh. 
It is lor the court to deciiie on the fact of its ef- 
fect upon the community, o' its tlfect on Judse 
Frazier. The coiin-el asks if a man is respon- 
sible who sees a tight, and stands by, but takes 
no pHrt 111 it? I admit th it he is not responsi- 
ble ; but then, if there is a gre t politic d excite- 
ment existing in the country, and an attempt is 
made to break up a properly convened assem- 
bly, about to act upon a 00 itical matter, and a 
judicial officer is drawn into thehiatof passion 
oris under 'ts influence, then I submit that he 
is responsible for that. 

Jiidne Brien — You must prove some act of 
his; you must make a link that will do to weld 
to another link. 

The President— The question before this court 
is, is this question to be ans nyred? 

Senator Smith thought the sixth rule adopted 
by the court would govern the Cise. 

Th'i President— A difficulty seems to arise 
here. 

.Junge Brie 1— Will you allow me to state a 
rule which 1 think has been adopted in all the 
cou' Is ? It 's thit ttie President determines the 
question, without referring'- it to thu ''ourt, un- 
less there should hajipen to be a ddference of 
opinion between the President and the ciurt. 

Mr. East- The question is whether or not the 
Clerk of the House is bound to take down the 
testimony. 

The President— We ar'^. trying to keep a 
journal, a record that will be i-eal here every 
morning When a question arises betw- en the 
counsel about the admisibility of testimony, 
and the question is put and thede ision is made, 
how is that to go on the journal ? 

Mr. Kast— It is voted upon to-moirow morn- 
ing and pised. 

Mr. Trimble— tis very easy to make up the 
journal • the journal will show it. A particular 
question is asked General Thomas as to the 
ttate of mind and temper of the people of Nash- 
ville in July, 1860. That can be state! on the 



47 



journal as the question objected to by the coun- 
sel, nnd then the vote of the court will be givea 
on the iournal. . , ., 

The Pi-eiideut— This is an important matter 
at the outsec, and the I'rebidein. would preler 
referring it to the court. ^ .,, 

J\Tr Trimble— It is a question for the court. 

Mr Maynard— It is manifestly a que-tion lor 
the court In a precedent in Judge Peck's 
case the question was put whether the witness 
should be required to answer the question. 

The President put the question in form, and 
the court deemed by a voie of 13 ayes to 6 noes 
that the question shoull be answered. 

Mr. Trimble— General, you will please answer 
the question now. 

Mr. Ewing— We with to have a right to re- 
serve the question whether this can be con- 
sidered by the court in making up its de- 
cision. 

Mr. TrimMe— It is already decided now. 

Question bv Mr. Trimble— You said, General, 
that vou were a Major General, and had your 
headouarters here during July? A. Yes. 

Q. 'iheu I merely a-k vou the question; be- 
ing in that situ ition, what was the state of 
mind and the temper of the iteo- 
ple in the city o' Nashvills at that lime? 
A. There was considerable excitement. I 
could observe it from the conversation various 
jjersons had wi'h me, and what I read in the 
newspapers published in the city at that 
tira .1 

Q. What was the temper of the times? A. 
The comments of the papers were very severe 
onbotli -ides, and so were the remarks of tho^e 
persons who conver ed with me. 

Q. Is that the only reply )ou wish to give? 
A. Yes. 

Q. It was your duty, was it not, at th it tme, 
to prese;ve peace and order in society, if there 
had been an outbreak ? A. Jt was m\ duty, a-; 
commanding officer of the Mil tary Division of 
the Tennessee, to see that there was no open 
outbrGak against the Government, and to put 
any open outbreak down. 

Q. Did Governor Brownlow, whilst the Leg- 
islature was in session, anply to \ou ibra'd in 
any way to execute the law? 

Mr. Ewiag — We object to that, may it please 
the court. 

Mr. Trimble— Well, state your objection. 

Mr. E vlng — We sny that what Governor 
Brownlow may have done t-r may have thought 
in regard to this matter is of no pertinence to 
this trial. 

Mr. Trimble— Well, how is it possible ever to 
make out the case. The te&tiniony must be got 
in iiy inches, but if every inch is cut oif as we 
proTose to got it in, how are we ever t ■ get the 
case beiore the court? It is material, ^.I think, to 
show th t such was the state and temper of ihe 
times that the Governor of the State applieii 
to General Thomas for aid to execute the law of 
the State, so as to procure an organization of 
the House of Representatives. We txpect then 
to prove that General Ihomas au- 
plied io the headquarters at Wash- 
iligton, sending the ivquest that was made 
from Governor .Brownlow. And we expect 
to have the reply that was made to Gen. Thom- 
as, and we expect to show thit the Legislature 
could not organize it elf. We expect further 
to prove that there was a time when, trom the 
same heudqu <rters at Washington, an order 
had been sent here, that if military aid was 
necessary. Gov. Brownlow was to apply for it. 
AVe expect to prove that chain of facts, and that 
thev were facts of general notoriety, and espe- 
cially obliged to be taken notice of by a judi 
cial officer, under the circumstances. 

Mr. Meiynard— It was part of his official duty 
to know it. 

Mr. Ewing-We don't thiua that, as a judi- 



cial officer. Judge Frazier had anything to do 
with it. He had a pure question ot law Isefore 
him. He was bound, under the constitution 
an I his oath, to decide that quest on according 
to the law of the land; and whatever may have 
been done by Gov. Brownlow, or by anybody 
else, ur have been done or said by anj body else, 
we deem wholly impertinent to any is; ue that 
is made here in regard to his guilt or innocence* 
If he was bound to take notice of this excite- 
ment; if as a judge upon a question of law, 
tuircly of law. iukI a que.-tion of duty, 
he hud been bound to take maice of thiscxoite- 
ment, then the ques ion might as-ume a differ- 
ent aspect; but if as a iudge it was his duty to 
look to the lawanitothe law alone, th u we 
say that the question in regard to what individ- 
ual.'* may have done upon tht^ tupposition of 
excitemt'nt in the community, is not material. 

Judge Brien— As a judge he ought not to 
look at it. 

Mr. Ewing— He ought not to look to any 
threats or to the roar of pub'ic opinion. 

Mr Trimble — that is what wi- say. 

Mr E •■ ing— We say so lo >, and thatyou must 
conue't him with that excitement, and prove 
some ovei t act. ! he overt ac on his part would 
lirbt have to be proved, and then the testimony, 
on that point could lie adduced. 

Mr. Miiynard— Will the gentleman allow me 
to ask him a que-tion? Suppose the judge, 
kuDwing this state of things, knowing t^is 
seditions purpose to overturn the g'jver'imnit, 
had ma 'e a decision in violation ol law, sub- 
versive of law and in the interests of the se- 
ditious party, is not this an important matter 
lor the court to ascertain? 

Mr Ewing — Whenever it is shown that Judge 
Frazier was connected with any sedition or se- 
ditious parties, that he conspiretl with anybody, 
that he was part ot a con-piracy, then all the 
circumstances that surrourded that oonsi iracy, 
vvhatever may have been its tendency, would 
be competent testimony. But cases have ex- 
isted lieiore where t.iere was great pul>lic ex- 
citement and juiiges have ri-en up to the hi>ih 
toneot their 'luty ; and we expect to prove that 
that is the fa^t in this case. There may have 
been influences on one side or the other. W^hen 
they say toat he was connected with any inllu- 
ence> oiihat kind, then it is connpetent toieli 
us of thut ; for we cannot see as yet that there 
is anv l)asis upon which these collateral cir- 
cumstances are to be founded. 

Mr. Trimble— Tlie question. 

The vote being taken, ihe court decided by a 
vote of 14 ayes to 5 Boes that the que-tion 
should be ansv\'ered. When Senator > homp- 
son's name was culled he ar^ se anil stated that 
he thougncthis case was assuming a political 
aspect and he \Vj0uld therefore vote no. 

The President— The witness can answer. 

Question by Mr. Trimble— General, will yoit 
please to answer the question? A. He applied 
[O me for aid to enforce the attendance ol 
membeis 

Q. Do you know about what time that was? 
A. I cannot state precisely. Out it was early lu 
July. 

Q. Have you not a memorandum of the whole 
transaction? A. Not here; I have a memoran- 
dum at my headquarters In Louisville. 

Q. I'here is nothing to remind you of the day 
or time? A. It Was in the early part of July. 

Q. Do you know what day the Legislature 
met? A. I think on the 5th of Julv. 

Q. What reijly did you make to him [Brown- 
!o • ?] A. Iflrstsuiimitted his communication 
whicn was m writing, to the aitthoritieS atWash- 
ington for nstructious and the instructions I re- 
ceived vvere, first bv telegraph, and then writ- 
ten instracdons sent by mail, simply a copy of 
the telegram, which was ii substance that in 
matters oi' tliat sort it was not ])roper that mili- 
tary interference should be i-esort. dto. 



48 



Q. Hadn't you been previously instructed to 
give military assistance to the Governor, it ne- 
cessary? A. I had previously been instructed to 
aid the Governor. 

Q In organizing the Legislature? A. The 
flr>t Legislature, but in general terais. 
This pecu i ir question had never been pre>ent- 
ed to me before, whethei or not I was to inter- 
fere ia purely State matters. 

Q. The application to you was made to enable 
him to enforce the attendance of members? 
A. llefractory members, I think, was the ex- 
pression? 

Q. Said to be in Nashville at the time? 
A. Yes. 

Q. Did he name them? A. No, he did not. 

Q Did he name how many there were? 
A. No. 

Q. Did he state to Tou the state of things at 
the Capitol at that time? A. No ui0)e 
than application for aid to a-sist in en- 
forcing ihe attendance of refractory mem- 
bers 

Q. How much ad did he ask for? A He 
asked for such aid as I could afford, 
meaning niv whole force, if I thought !'■■ was 
necessary, I suppose. 

Q Yo!i r ceived his proposition and commu- 
nicated it ta the proper authorities at Wa-h- 
ington for instructions? A. At Washington, 
and received instructions 

Q. That ended it, did it? A. That ended it. 

Q. We 1. can you lix the date of the reply you 
received irom Wa-hington ? How l»ng alter the 
Governor male the application? A. Well, sir, 
it must have been three days perhaps. It was 
veryshortlv afierl sent the telegram asking 
lor instructions. 

Q Did the reply come from the President? 
A. The reply came from General Grant through 
the Secretary of War, by direction of the ir're- 
si lent. 

Q. I sup, lose the former order ciroe to you 
from the Pre iilent and Secretary of War, to 
grant any aid that vas necessary m the orga- 
nization of the Legislature. A. I don't remem- 
ber whether a specific order wa^ given to me 
in thatrtsiect or not, but I remember that a 
telegram was sent t > Governor iirownlow to 
call on me for assistance. 

Q. Do you know whether or not of a feeling in 
the community on the part of the people, the 
leaders of the people, to br.^ak up the or.-aniza- 
tion of the Legslature at th^ Capitol? A. I can- 
not say of my own knowledge, be ause I 
avoided the thing a- much as possible. 

Q. Have you any other information in refer- 
ence to this niHtter of the habeas corpus and 
trial in July, 18^6? A. 1 have no other dii-ect 
infor.matiou in regard to it 

Q. Well, what do yon mesfa by direct infor- 
mation ? A I mean thai X don"'t know from 
jny owa observation anything about it. All I 
know is what you would call hi arsay, what I 
read in the papers, and what I heard person-* 
say about t. 

Cj. Yiiur knowledge was gathered just as in- 
formation is gatheiedat any t me in reference 
to an other matter ? A. Y«s, sir. 

Q. Can you state whether there was or was 
not, from your oIjspi vation, a disposition to 
bi-eak up the Legislature dur ng its called ses- 
sion in July, 186(i? 

Judge IJrien— We object to t'at. I call upon 
you to point me to a law book for a single pre- 
cedent. 

Mr Trimble— I think it is conpetent, and of 
course I argue the question. You look Mtthis 
from one standpoint, and I look at it through a 
somewhat diflerent medium. I desire to de- 
scribe the times pastas they were, and then let 
the Senate infer from it what they will ami 
ought to infer. That's the case I am trying to 
make out. 

Judge Brien — When we are trying a man 
where his reputatijn and the reputation of his 



family may be ruined, I want him tried. This 
is a criminal trial. 1 have made suggestions 
that I thought were satisfactory to rny own 
mind, and, with some little experience in the 
practice of the law, were conclusive. I appre- 
hend the gentleman cannot And a precedent 
in the world where any man has ever been 
Called in forhis opinion in such a case. 

Mr. Trimble — I did not ask his opinion. 

Juilge Brien— Yes, you asked him. Does he 
know the facts? He stated that the iniorma- 
tion he had was from the conversation of others, 
that it was hearsay. 

Mr. Mayuard— In what way do you find the 
e.xpression of the public mtnd, except Irom 
leaders of the public mind, and the ))ress, and 
other indications of the public purpose We 
pr >pose here to establish the state of the public 
mind by the testimony of one whose business, 
and whose ollicial duty it was, to know that 
fact by such means of information as would 
satisfy him as a basis for hi^ ollicial action ; the 
very highet autiiority that could possibly be 
put belorethis court. 

Judge Brien— I will answer that by asking 
you a question. Suppose e\ery paper in the 
S ate of Tennessee, and every man in the State 
of Tennessee were to say that Judge Frazier 
was guilty i.f this oHeuse, and you would ask 
GtiU. Thomas whether they diil not say so or 
not; I ask vou whether thjt would be compe- 
tent testimony ? 

Mr. .tiaynard — Wt li the gentleman has bor- 
rowed asty e of discussion perhaps irom a 
quarter of the country that I ought not to ob- 
ject to, but I will answer his point. It is this, 
that that is a special and particular fact, 
whereas we are inquiring in regard to a gen- 
eral public tact The difference is illustriited 
m st clearly by the diflerent propositions sub- 
mitted. 

Judge Brien — Now, (hen. I will go on and 
make a further answer. That, he says, is a 
pirticuiar act because it points to the defend- 
ant. General Thoma> has already told you the 
sources of his evidence, Hadn'tyou betterread 
the newspapers? But General Thomas read 
them, and recollects his reading of them, and 
would'it not be better to read the newspapers 
themselves? Woudn't it be better to get the 
people M'ho said cerram things to come here 
and state th m? There is one way to get this 
right, and that is to prove this against Judge 
Frazier, thS defendant at the bar. When you 
have established a conspiracy that exi'^ts in 
the land and connect Judge F^azier with that 
conspiracy here, then > ou may prove every- 
thing that everybody said that was connected 
with ihacconsi>ir;.cy But not until you con- 
nect him with the consp racy, not until you 
show some act of his,caii you do this. Y'ou can- 
not show a state of lacts that possibly might 
h ve been. Uhai, wouid not do. Y'ou cannot 
show th it there was a great crowd, and gveat 
excitement and that the Judge might perhaps 
be connected w th it. That won't do. Show 
some f ict. 

Mr. Maynard— Will the learned counsel allow 
me to interpose? If a man is charged Avith 
murder, will that be no testimony that the de- 
ceased was put to death, wheiher it was done 
by the party accused or not ? You have to bring 
in the testimony by successive links, as was re- 
marked awhi c ago by my associate counsel. 

Judge Brien — How do you prove that? l)on't 
you bring a man to swear that there was n body 
found, and that th re were marks of viof nee 
by a pistol or gun or knife, etc 1 Y'ou have 
proved the tact that there was a body found 
with marks of violence, and then you goon and 
see wtio was most likely to have committed the 
deed. Was there any marks of blood upon 
Judge Frizier's -kirts? Was the ^lun e;>ply, 
was the man killed with a bullet O: p stol or 
knife? These are circum tances pertinent 
to the is-ue, and you would not a k General 



49 



Thomas, (Hd von hear that there was such a 
man dead? Suppose the rumor that General 
Thomas might have heard wa-; not true, some- 
t me this does happen. Thelleraiii's Washing- 
ton correspondent reported that Browning 
was dead. Browning is alive and get- 
ting well. Another correspondent rt^portfid th;it 
a Senator M'as dead. He is in Washington, at 
TCork. These reports won't do, and that is the 
reason oflaw that vou muse establish the facts. 
Mow. ii Gen. Thomas knows of hi- own per- 
S'^nal knowledge that there was a determina- 
tion on the part of anybody, he might stite 
that; but Gen. Thomas has already stated that 
he knew this only from having read the news- 
papers and hearing persons talk alioiit it. 

The vote was then taken, and the court de- 
cided that the question shotild be answered. 

Gen. Thomas— I can only state that it was 
my opinion that there was a ilisposition to 
break up the Li gislature, and that opinion was 
lormed from conversation with different pcr- 
S'^n- and from reading the newspapers pub- 
lished at the time. 

Ju'lge Brien — Now, I submit to the court 
whether General Thomas, h ivinganswored the 
(jitestion giving it as his opinion, whether that 
is competent testimony or not? 

Question by Mr. Trimble. General Thomas, 
you said a while ago that you did re- 
ceive from the President iin order to give 
assist.'tnce to Governor Brownlow if he needed 
it? On what occasion wa^ that, do yon remem 
ber? W th reiereace to what occ sion was 
that Older given ? Was it iu reference to the 
Oongre>s onal election in Augtist, ]8'5, and ciii 
you repeat the order? A. I cannot repeat the 
ord r. 

Q. The substance of the order ? A. The sub- 
stance of the order was to give the Governor 
assistance in enforcing the laws relitive to 
elec i ns. 

Q. Well, what elections were meant? A. The 
elections ot members oi the Legiblatitre and 
members of Congress too. 

O. What year was that in? A. That was in 
1835. 

Q. Thfre was at that time a general effort 
throughout the eonntryto breakup the elec- 
tions, wys there not? A. Ye-, sir, there was. 

Q And on that occasion the PresidL-iit gave 
such an order to give tae Governor any aid nec- 
essary ? A. Yes, sir. 

Q. Do you know the state of afl'airsin July, 
186G, a> in August, 3885. A. Yes, my opinion 
was derivied in thr" same way. 

Judge Biien — I don't want to take up any 
further tim- in dscussing these questions. I 
want you to understand us, however, as object- 
ing t'»":ill these questions. 

CJ. As commander-in-chief of a district, f n- 
instar.ce, is it not your special duty to ascertain 
Jor yourself he stite of iriud and temper of 
the country ? A. Yes. 

Q. And (lid you not do so? A. I did. 

Q. At both time-, in August, 1865, and July. 
18fi6, tlie impress ons m-ule on your mind were 
that there was an attempt lo interfere with the 
ehctio' s in 1S65 and to breakup the Legisla- 
lature iu 1S66? A Ye-i. 

The Pre-ident— The hour for adjournment 
has arrive!. 

Mr. Trimble— I would suggest tb at General 
Thom is wishes to leave as early as pos-ib'.ethis 
evening. Probably we may get through in a 
fevv- minutes. 

Senator Speace moved that the court continue 
in ses-ion. 

The Pre-idont — If there is no objection we 
wi 1 proceed. 

Q. You were not present at the trial of the 
habsr.s corpus case, I suppose. General? A. I 
was not. 

Q. Do you remember when it occurred? Co 



you remember that there wa^isuch a trial? Do 
you know. A. I do: but I have not lixed the 
date in my own mind so as to remember it. 

Q. VYere" you on the streets? A. Yes. 

Q. Did you observe any unusual excitement? 
A. I observed the same as I did from the be- 
ginning of the session of the Le<dslature. 

Q. tan you furnish us with a copy of the 
communication that you made to the Depart- 
ment at Washington? A. I can. 

Q,. At both limes? A. Yes. 

Q. You can furnish copies of the communica- 
tions on both sides? A. I lan furnish copies of 
Gov. Brownlow's communication to me if it 
was retained iu my otUcc ; and I can furnish the 
repy received when I as); ed for instructions. I 
think I can furnish the reply. 

Q. You hnv • giveu ttiesuhst inceof italready? 
A. I have given the substance. 

Mr. Trimble— Then you will be so kind. Gen- 
eral, on your return to Louisville, as to send 
tht: Spealier a copy of those orders. 

The counsel for the defense agre.d that these 
papers should, when received, be put in as if 
they were given now. [The communication 
hei-e referred to will be found at the conclusion 
of G n. Thomiis' testimony. Keporter.] 

Cross examination. . — Question by Mr, Ewing, 
counsel for respondent. Gen. Thomas, do you 
recollect of any threat in any newspaper to 
break up the Government ? A. I do i ot remem- 
ber any threat male in positive words, just 
now; but the tone of the papers was tnr. atening. 

Q. Can you recollect any expression in any 
pardcular paper? A. No. 

Q I asked the question inrelerence to the 
examination already made, a ^ es, I so sun- 
po-ed ; but I was going to state, I remember the 
inipressioninade on my mind at the time was 
that tlie tone of the newspapers was excited, 
but Idoa'tremember nowanvttdng more than, 
in general terms, that they were so; because I 
read them and l.uil the p:*(jers a^ide, and never 
expected to havcti refer lo thein again. 

Q. Did you believe that there was any imme- 
diate danger of action of that description? A. 
I cannot ^ay th it I believed posstively that 
there was any immediate danger. I believed 
there was a feeling, a di^positiou, to break up 
the Legislature. 

Q. \S'as th'ie a feeling, or did you observe 
any feeling; for I ask tliese questions in nd- 
ereuce to the examinati n heretofore. Was 
tbere any feeling exhibite I, as far as j'ou r)b. 
^erved, to break the Legibl attire up by violence? 
A. I saw no organiz ition for t lai purp se. I 
merely heard persons sav that they believed 
that p.'ities would attempt to break up the 
Legislature, and 1 saw that in the papers iu 
gene 1 terms, there expressed or insinuated, 
and I also heard persons say that iliey would 
resist it, etc. 

Q. By for e or by law? A. I presume they 
meant by force. 

Q Did they say? A. They did not say posi- 
tively, but the manner in which thej' talked 
about it led me ^to believe that they were so 
disposed. 

Q, Was th?re any public meeting on consul- 
tation, 'hat 3'ou know ot, by any persons ? A. 
I do not know oi any. 

Q. Can you mention any leaiingman that 
j'ou heardsay that he would attempt to break 
uj) the Legi-iiature by violence? A. No. 

Q. Then, th- se papers that were read by us 
all at t!ie time are the main sources from which 
you derived your information ihatthe'e was 
danger of brt-aking up he Governnie'it? A. 
Y'e-, the new>papers and the general conversa- 
tion of persons. 

Q, Were ihese expressions that you speak of 
the expressions of he em^mies of the Govern- 
mint, or the expressions f f fr ends ot the G'lV- 
ernment, that they feared there \vould be sjma 



50 



danger of violence? A. Well, I don't know of 
an' |i. rsou who was then consideied an unemy 
of the Government, who conversed with nie on 
the subject They were all men who were loyal 
men, or persons who had taken the oath of 
allegiance and expressed a desire to have quiet 
and peace, 

O They expressed their fears? A. les. 

CJ. But you heard no threats from anybody 
else'' A. No. 

Cj. Were you acquainted with Judge Frazier? 
A I was not. 

Q Are you acquainted with him at th:s timei' 
A. i am not. I dun'tk now that I have ever been 
introduced to Judge Fra/ier. 

6 Uo you know what ids position in regard to 
the contest tliat had taken place was, whtther 
he wa-- a Union manor a rebL-l? A. Wt-U, the 
impression made on my mind was that people 
vFere surprised that he should have enter 
tained the application for the writ of habeas 

corpus , .„ . r. 

Q. Well, by whom was iliat expresseor' A. l^y 

these same people. ,, ^ v, 

Q. Whv cud they express surprise that he 
should have taken that cour?e? A. Becau^^e 
they thought lie was a friend of toe Union. He 
was, up to the time of the trial 

Q. If the granting of the writ of ha' eas cor- 
ptis was noi. a hostde act, his acts so far as they 
were represented to you up to that time were 
those of a friend of peace? A. Yes sir, so far 
as I heard. . . j p 

Q, That was the first occision you hrard ot 
his having deviated from his previous course? 
A. I ihiiikso. 

Q. Do you remember by whom he was ap- 
pointed? [By crns'.nt no answer was mude.] 

Q. Did )0U ever hear Judge Frjzier— tait 
there is no use in asking that question. A. I 
never conversed with him. 

Q Do 'you know his character as a judge, in 
suijportof law and order ? A. Well, the im- 
liressiau wade upon mv mind at the t me of the 
issuing or tiie writ of habea- corpus was, that 
they Wfi-e surprised ihat he should have done 
it because the impression was that he was dis- 
posed to be strongly for the Union. That im- 
pression, however. ;s not so very distinct. I 
don't remember the impre-sion exactly, but as 
Jar as 1 rec(dlect, I remember that surprise 
was txpi-essed that re should have entertained 
the ap'.dication tor a writ. 

Be Direct .Examination— Qvesiion by Mr, 
Trim He— I will a.sk you if your iinpre.-sion 
was that he was friendly to tbe Government, 
or a Union man? Do you know how he 
stood toward the State government? A. No, I 
di<l not. 

Q. Whether he was m favor of the Radical 
Legislature or not? A. No. 

The Court then adjourned. 



The following are copies of the official docu- 
ments referred to by Gen. Thomas in the testi- 
mony given above. 

State House, ) 

Nashville, Tenn.,July l4th,18G6.i 
Brig. Gen. W. D. Whipple, A. A. G.: 

General: I have the honor to request that a 
deiyilof (\b) fifteen men (soldiers) lie placed at 
my disposition lor the purpose of sending for, 
and :u resting the Ilouoi-able IT. H. Marable, 
member of the Hou>e of Keiiresentat.ves, 
as per resolution passed by the Ilonse and or- 
der issued to me, origina's of both of which are 
enclosed 

I am, General, very respectfully. 

[Sii{ued:l Wm. Hetdt, 

Sergeant-at-Anns House of Representatives. 

Please return enclosi-d. 

Oflicial: Wm. D. Whipple. 

Brevet Mf.j. Gen. U. S. A., A. A. G. 



[By Telegraph from Nashville, Tenn ] 

July 14th, ISG*). 
To Lieut Gen. U 8 Grant, WasJiington, D. O. : 

Some of the members of the House ot Repre- 
sentative* of the Tennessee Gener d Assembly 
conduct thi mselves in a very refi'aclory man- 
ner, absenting them>elvcs to prevent a quorum, 
thus obstructing busine-;*. 

The Governor cannot man age them with the 
means at his disposal, ami has app ied to me 
for military assistance. Shall I furnisli it ? 
Ifeigned:] Geo. H. Thomas, 

Maj.Gen. U. S. A. 
Official : Wm. D. Whipple, 

Bvt. Maj. Gen. U. S. A., Ass't Adj. Gen. 

[By Telegraph from Washington, D. C ] 
July 18th, 1866. 
To Maj Gen. Geo. H. Thomas, Nashmlle, Tenn. : 
Tlie fiicts state '■ ia your dispatch of tlie four- 
teenth (14th), do not warrant the interference 
01 military authority. 

[Signed:] U. S. Gkant, 

Lieui. Gen'l. 
Official: Wm. D. Whipple, 

Bvt. Mai. Gen. U. S. A., A. A. G. 

War Department, ) 

Washington City, July I7th, 1866.5 
General : In reply to Major General Thom- 
as' telegra of tbeUth, you will please ins ruct 
General I homas that the lacts stated in his tele- 
grams do not warrant the interlerence of mili- 
tary authority. The administration of tl;elaws 
and thi< preservation of the peace in Na ville, 
belontr properly to the State authorities, and 
the duty of th*- tnite I States forces is not to 
interfere in any controversy between the po it- 
ical authorities of the state; and General Tom- 
as will strictly abstain from any interfertnce 
between them. Your^trulv, 
[Signeu :] Edvvin M. Stanton, 

Secretary <.f War. 
To Lieut. Gen. U. S. Grant, 

Commi, ding Annies of United States. 
OlBcial : Wm. D. Whipple, 

Bvt. Maj. Gen. U. S. A., Ass't Adj't. Gen. 

Headq'rs Mil. T)iv. op the Tennessee, ) 
N AsnviLLE, Tenn , July 10, 18 -6. ( 
William Ileydt Esi]., Sergeant-at-Arms, House of 
Iieprese7iiatives, Nashville, T^nn : 
Sir: I have the honor, by direction of Major 
Geu' ral Commanding to inform you tliatyour 
application for a detail of soldiers to assist you 
ill arresting certain meml^ers of the House of 
Representatives was referre) by Mi'jor General 
I homas to Li-mtonant General Grant, com- 
manding Armies of the United states, and it has 
be- n by him directed that the case wid not 
warrant the interference of military autliority. 
P ease find enclosed your orders, which you 
required to be returnf d. 

Very respect'uUy, 

Your obedient servant. 
[Signed;] GEO. W. Howard, 

Ass't jidj't Gen. 
Oflicial: Wm. D. WHIPPLE, 
Brev Maj. Gen. U. S. A., Ass't Adj't Gen. 



WEDNESDAY, MAY 15, 1S67. 

The court met at the usual hour, the Presi- 
dent in the chair, and nineteen members pres- 
ent. 

The journal was read and approved, when 
Senator Carrigan presented the following 
paper : 

" Mr. President : In recording my vote yes- 



51 



terday on the questions made by the counsel for 
the defendant in the case now before us in re- 
gard to the eligibility of Senator Hall and the 
competency of Senator Powell, I desire this ex- 
planation shall be entered upon the journal. 
When Senator Frazier was chtdlenged by thp 
counsel for the prosecution upon the grounds of 
inrompetency, on accountof rehitiouship to tlie 
defendant, I held that the Senate of the State, 
alter it had been resolved by the constitutiim 
into a court of impeachment, liad no power to 
exclude or disqualily one of its members. He 
who is competent as Senator is competent by 
the con'titution to act as a member of tlie 
cjurt of impeachment, and this court h:is been 
referred to no pr vision in the constitution, no 
principle of law regulating conns of impeach 
ment, and to no precedent of sulhcient wtight 
and authority to change my original conceptions 
of the law. Jo. G. Carrigan." 

Senator McKinney offered the following: 

"I do not believe that a Senator should sit as a 
judge in a case which he had air ady prejudged 
or determined. In this case Senatir Powell, in 
conversation since i he organization of the court, 
when there was no object to gain by misleading 
me, as it was b fore the objection was made to 
him, said that he had arrived at no determina- 
tion in regard to the case, that he intended to 
hear the evidence and the argument, then do 
what he should think right. 1 sl^all therefore 
VOt,i no. C. J. afcKiNNEY." 

Senator McKinney also offered a resolution to 
extend the sessions of the court. The resolu 
tiou was rejected; ayes 5, noes U. 

The clerk here read the documentary testi- 
mony referred to by Gen. Thomas in his te?ti- 
mony, which is published in the proceedings of 
Tuesday. 

Mr. Trimble here arose and said that the 
managers on the part of the State and their 
counsel desired to offer in evidence portions of 
the journal of the House of Representatives for 
the extra session held in July, 1866, in order to 
show what had been done to obtain a quorum 
of the members of that body. 

General Smith then read the following from 
the pages of the journal of the called session 
in July, 1866: 

The proceedings of the 4th, 5th, 6th, 7th, 9fch, 
10th, 11th, 12th, I3th, 14th, 16th, 17th, Ibth, 19th 
and ioth days ; July 2Ut, iiage 32. 10th and 24th 
lines inclusive; page 35, 2Uth and 3tth lines in- 
clusive; July 23d. page 36, and down to 7th line 
of f.age 37; July 2tth, page 41. 4th, 21st. 33d and 
44th lilies inclusive; pages 42, 43, 44, 45, 46, 47, and 
on p;ige 48 down to the 3d ine. 

Also, a portion of the House journal for the 
sess on beginning on the 3d day of April, and 
ending on the ]2ih day of June. 1865, as follows: 

Page 3d, 2d, to lotli lines inclusive; April 
5th, page i4th, 7th and 29th lines inclusive. Al-o 
the 14th rule adopted for the government of the 
HounC of Re[)resentatives. 

TESTIMONY OF H. P. MURPHY. 

H. P. Murphy was then called as a witness on 
the ixirt of the State, and sworn by the (ilerk. 

Examination in Chief. — Question by Mr. 
Tri HI ijle— Stale your name. Answer. 'H. P. 
Murphy. 

Q. You were a Representative from Jaskson 
county"? A. Yes. 

Q You were here at the extra session? A. 
Yes Sir. 

Q When did you arrive at Nashville? A. On 
thi'3dof July. I think 

Q. Tiie Legislature convened on the 5th. Were 
you p-esent on the 5 h, when the Legislature 
convened? A. Yes, sir. 



tj. Do you know whether Mr. William*, the 
member from Carter, was in town or not? A. 
No, sir: I don't recollect distinctly. 

Q. Was he here in July? A. Yes, sir. 

(X He then came here? A. Yes. sir. 

(^. State when he came here? A. I think he 
came here the lirst Meek of the session. He 
was on till he was arrested. 

Q. He was, in point of fact, here on the 5th, 
as the journal shows— Williams from Carter 
county* A. Ye«, sir. 

Q. Did you have any conversation with him 
after he came to Nashville as a member of that 
session? A. Yes, sir; 1 frequently had conver- 
sation with him. 

Q. Well, what was the state of his mind as to 
this amendment that was proposed? A. Well, 
he was opposed to the amendment. He said he 
could not consent to vote 'or it. I recollect on 
one occ;ision, on the day the vote was expected 
to be taken, during a part of the proceedings, 
not I think on the adopiion of the amendment, 
he had gone out to avoid voting. 

(J. Y'ou heartlhim say thathe had gone out 
to avoid voting! A. Y^es. sir. 

t^ Well, were you not struggling there from 
day today to get a (|uornm? A. Ves, sir. 

Q,. Were there others who went out too? A. 
Yes, sir, there were Mr. Martin and Dr. Murablo, 
from Beutun and Humphreys counties, and Mr. 
Dunnaway, from Bedtord county; I think they 
were absent awhile. 

Q. Were all these persons opposed to the 
adoption of the amendmc-nt? A. Y'es, sir. 

ti Were they very much opposed to it? A. 
Yes, they were violently opposed to it. 

Q And absented themselves and said they 
would not vote lor it? A. Y'es, sir. 

Q. And absented themselves to avod voting 
for it? A. Yes, sir. 

Q. Do y lU know when Williams went home? 
A. I don't recollect the precise day. I think ic 
was somewhere about the 10th ot July, jjerljans a 
lew days liefore he was arrest d. 

t). And he said nis object was to pi-event the 
adoption of the amendment? A. I told him 
that the vote would be taken directly, and that 
he had better come up and vote, and he salit he 
did nut want, to be present. 

Q. The Legislature was cal'ed together 
mainly for that purpose, wasn't it? A. Y'es, 
sir. 

Q Upon the question of the adoption of the 
amnndni -nt? .•v. Y'es sir. as I understood it 

Q. And there was a difficulty in getting the 
members who were in town to be present? A. 
\ es, sir. 

Q. These members that were in town were 
emteavoriug to prevent a quorum? A. Y'es, 
-ir. 

Q. Was Williams much in the House? A. 
While he stayed here he was pretty generally 
i theHou^e. 

Q. Did you hear him say what he left for? 
A I don't know that 1 do recollect what he 
said about leaving. 

Q Did you see him when he was brought 
back? A. Yes, sir, 1 saw him. 

Q. Do you tinow whiMi he was brought back? 
A. 1 think it was about the 18th. 

(J. He was in the e.ustody of the Sergeant-at- 
Arms ot the House? A. Y'es. sir. 

Q. He and who else were in the custody of 
the Sergeant-at-Arms? A. Mr. Martin, of 
Jackson county. 

Q You remained during the whole session? 
A. Yes sir. 

Q. Were there any outside influences, that 
you obs'Tved, brought to bear to prevent a quo- 
rum in the House of Representatives? I -mean 
such as you observed >our-elf? A. Well, I 
think I could see a di-posiiion to leave the 
House without a (piorum. 

Q I mean was there a lobby ? Did you have 
members of the lobby in the House ? A. Yes, 



52 



Q. "What did they seem to be doing ? 

Mr. Ewing— We object to that. If anybody- 
said or did anything, it is competent testimony; 
but what seemed to be done is not competent 
testimony. 

Mr. Trimble— There were lobby members 
there who attempted to break up this General 
Assembly. The counsel says I must prove what 
somebody did. 

Mr. Evvina:— "Well, who were they? 

Mr. Trimble— Well, I can ask in my own 
way, and you can make any objections you 
please. 

Question by Mr. Trimble. Was there a body of 
men in the lobby, interfering? A. Yes, sir. 

Mr. Ewiug—1 object to his answering that 
question, unless he specifies the men ana what 
they said or did. 

Q. What were they doing in the lobby? 

Mr. Ewing — I oljject. 

Mr. Trimble— What were they doing in the 
lobby? Who wei-e chere that were inimical? 

Judge Brien— I submit to the court whether 
we will not have the questioa determintd be- 
fore we go on. 

Question by Mr. Trimble. Can you name the 
persons that were there— lobby members? A. I 
cannot ; I am acquainted with but few persons 
about the city. 

Q Were there many there? A. Generally a 
good many there. 

Q. Was the loljby quite full? A. "i'es, sir. 

Q Did they come iu the House? A. Yes, sir- 
inside the bar. 

Q. l)vi you see them in conversation with 
Marable, or with other persons tnat were trying 
to prevent the organization of the House? A. 
Yes, sir, I saw them. 

Q. That was whilst you were trving to get a 
quorum? A. Yes, sir; I heard one man speak 
of the object alter the vote was taken. 

Q. Well, do you know, of your owu knowl- 
edge, that these members, Williams, Martin, 
Marable, and others, who, as \oii have said, 
were violently opposed to the adoption of the 
constitutional amendment, would come into tlie 
Hou^e and look around, and if they found that 
there was the requi-ite number would with- 
draw? A. Yes, sir, that M'as the case. 

Q. Do you know that to be so? A. Yes. sir. 

Q. And do vou know that these persons you 
hive named acted with a view to prevent the 
organization 01 the House? A. I saw them go 
out. 

Mr. Ewing— I object to that. 

Question by Mr. Trimble. Were jou general- 
ly present during the sfssious of the House? 
A. Yes, sir, nearly every day. 

Q. "Was there any di order in the House at 
anytime pending that ditlicu'ty; and did 
armed men come in the lobby th t you know 
of? A Wtll, 1 don't know that^they did. 

Q. "Was there any di-ord r there at auy time? 
A. Yes. sir, a gno 1 deal of disorder. 

Q, Were not the memSiers advised to arm 
themselves lV>r self-aefense and protection? 
Do you know that? A. I don't know that. 

Mr. Ewing— I object to that, may it please the 
court. 

Question by Mr. Trimble— Do you know of 
any caucus "beintr held about the Capitol by 
those that were hostile to tue adoption or the 
constitutional amendment? A. Well, J could 
hear rumors about of such a thing as a caucus. 

Q For what object? 

Mr Ewing— I ol>jeot to his saymg that he 
heard rumors. We don't sit here to hear ru- 
mors. 

Question by Mr. Trimbb— Have you any rea- 
son to believe that there was any caucus held? 

Obie'ted to. 

Question by Mr. Trimble— State what reason 
you had to Vielieve taat there was auy caucus? 
A. I don't know that I could speciiy auy rea- 
son that there was a caucus held. 

Q. "VVhere was it held ? A. In tiie Capitol. 



Q. In what part of the Capitol? A. I don't 

know in wh;it part of the Capitol. 

Q. Well when you wt-re sitting there in the 
Gtueral Assembly and transacting business 
was there invariably a quorum present before 
you di'l any business ? 

Mr. Ewmg -Well, that is a matter of law. I 
don't think the witness can answer that. 

Mr. Trimble— I don't know that I care to 
press it. 

Question by Mr. Trimble— Were you here 
when a petition was made to Judge Frazier for 
a writ of habeas corpus on behalf of Williams ? 
A. Yes, sir. 

Q. Do you know who made it ? A. Mr. Wil- 
liams, I understand. 

Q. When did you first hear that such a writ 
baa been sued out, do you remembe:? A. I 
don't reco lect the date precisely. It must 
h.ive been somew' ere about the tenth or fif- 
teenth of July, 1866. 

Q. Were you at the court house when the 
oau^e was i-alled thery? A. Yts, s r. 

Q. Do you remember the day of the month? 
A. No, s.r, I don't recollect the daj' precisely. 

Q. What time were you there first? A. Well, 
I thinic it was iu th.' morning. 

Q. Well what transpired there? A. They 
were debating on the subject of the habeas cor- 
pus. I heard most of the debate on the subj.ct. 

Q. Did you hear the opening speech in the 
case? A Yes, sir 

Q. Who made it? A. Mr. Harrison. 

Q. Was that in the morning, or two o'clock in 
the evening? A. It strikes me it was in the 
morning. 

Q Who made the second argument? A. 
"iourself, I believe. Mr. Colyar spoke on the 
case onee. 

Q. Who else? I did not hear all the debate. 

Q. Well, was the crowd very large on that 
occasion? Were there a very 'ew, or a very 
large number of persons present? A. A very 
large crowd. 

Q^ The courthouse was densely packed, was 
it not? A. Yes, sir. 

Q. How many persons were present? It was 
a very large room? A. Yes, sir, a to erably 
large room. 

Q. What number of persons would you sup- 
pose in round numbers were present? A. From 
three to lour hundred. 

Q. What was the size of that room? A. It 
was as large as this, I suppose. 

Q. Well, there was a large audience and 
crowd? A. Yes. sir. 

Q. Did they come inside of tbe bar or railing? 
A. I don'trecoUe t whether any came inside or 
not. 

Q. Was not the room packed, inside the bar, 
as well as outside? A.I rathtr think there 
were a good many inside the bar; the House 
was very full. 

Q. "W^as tliere any excitement in the audience, 
do you know? A. Yt-s, sir ; I thought there was 
a considerable excitement. 

Q. What about? In relation lo the — 

Mr. Ewing— Well, if you heaid anybody say 
anything— 

Que>tion by Mr. Trimble. Did you see any- 
body Sitrike on the floor, or clap their hands? 
A. i'hat was when the debate was going on. 

Q What was applauded? A. I don't lecol- 
lect the particularexprt'ssion. 

Q. Was Mr. Harrison applauded any? A. No, 
sir; I think not. 

Q. He made an argument of how long? A. I 
don't recollect the length of it; about an hour, I 
suppose. t 

Q. Do you remember anything thiit Mr. Col- 
yar said that was applauded? A No, sir. 

Q. Well, the snb^iance of it, that was ap- 
plauded? A. Well it was his argument in fa- 
vor of issuing the writ of habeas corpus, or 
something about it. 

Q. Do you remember the substance of any 



63 



r.maik he made that was appl iiuUd ? A. I 
do not. 

Q Did vou hear Judge Bricn vvhea he was 
speaking 5" W as there any ciemoii.-tratidn of 
feeling or excitement? A. Yes, sir, there 
was a good deal. 

Q. It w:is repeated, was it not? A. Yes, sir. 

CJ. Do you remember the substance of what 
he said, that was appluded? A. Mo, sir, I do 
not 

Q. Something in favor of Governor P?rown- 
low and the Legislature that was applauded, 
was it not, or was It against them? A. I don't 
recollect that. 

. Q. Well, was the applause called forth by 
anything that was said for the Leg'slature or 
against it? A fcaid :> gainst it. 

Q. Y u said that thri e or four hundred people 
were present. Were there not nearly a thou- 
sand in tliat room? A. Wei!, there might tiave 
heen. 

Q. Was it not a very hot day? A. I think it 
was very warm weather. 

Q. And a great crowd? A. A cousi lerable 
crow'i. They could not all get seats, and some 
had to stand up. 

Q. Were \ou there when the case was deci- 
ded by thejudge? A. Yes. sir. 

Q. Well, was there a large crowd? A. Yes, 
there was a very large crowd 

Q. What attracttd the large crowd? A. 
Wed, I suppose they came there to hear the de- 
cision. It was generally thought by persons 
who conversed with me that some violence was 
iuteuded. 

Q. Vicdence intended in the court room? A. 
Yes. 

Q. To 'h m? A. We' 1, 1 could not tell hard- 
ly, but they were excited on both sides of the 
quesiion. Those that were friend-i of ihe I eg 
islature were on one side and tho.^e that Avere 
not, on the other. 

Q. Wbere nid Captain Heydt keep iwr. Carter 
and Mr. Williams alter he arrested them? 'A. 
I think he kept them in the con.mitte ' room of 
the H'lx-e of Representatives. 

Q Well, when Juiitfe Frazier delivered his 
opiidon in the court room you Sidd you were 
piesent? A. Yes. sir 

Q. Was thi^re then any demonstration of ap- 
pl:ni>e? A. I think there was. 

Q loud? A. Toleraidy loud. 

Q. Do you know when Carter and Williims 
were taken out of the custody of (.'ai^t Ileydt, 
and hy whom? A. It was done in the night, 1 
think 

Q. Was any violence done to the wiodows of 
the Capitol anywhere ? A. Well, I don't know 
that there was. 

Q Do you know how they entered ? A. No, 
sir, I don't know anything about that. 

Q. Well, state an^thinsf that you know rbout 
the rescue of Carter and Williams by th" Sher- 
iff, if you know anything: of your own knowl- 
edge. A. As it vpas all done in the night, I 
don't kn(iW anything about it. 

Cr'iss-examination. — Question by Judge Gaut 
— You stare that VVilliums and Carter we e in 
the committee room No. 3? Or did you state th<' 
numlier? A. J did not state he number pre 
else 3'. It is not far irom the Spoil; er's room. 

(J. ne of the committee rooms? A. Yes. 

Q Were they inside I'f tlie hall of the H'use 
(f Representatives during the time that this 
constitutional aQiendmeiit was passed? .,1. 
'ih-y were in the committee room 

Q. I mean in the committe- room, hut were 
ihey in the hall? A. They were not ou'side the 
ro I'm all the time 

Q l>id lleydt still have them nnder arrest 
then? A. We 1, I don't knoM^ Probably they 
were under arrest -At that time. They had ueen 
kept under guard there. 

Q. State, iMr Murphy, if you heard or had 
an/ conversation with anv pers'ns. except, 
those you havj mentioned, who stated that tlie 



reason that they did not attend was because 
they did not want to vote for the constitutional 
amendment, and whether you had any conver- 
sation with any person but Williams or Martin. 
it so, state who it wa? A. I don't recolle -t. I 
had a conversation with one of the members in. 
the minority sifterwards, and he was telling 
why he did not attend. 

Q. Well, we have not askcl you what he said 
individually, but what the others who stayed 
away said. Did you h.veany conversation 
with Col Dnggan? A. No, sir. •* 

Q Well. Mr. Murphy, it was your conclusion 
merely that there was an intention to prevent a 
quorum and not what you saw said or clone? A. 
It was formed from general c nversaiion and 
the actions of men there From this I concluded 
tliat they were trying to i>revent a quorum. 

(J. Wns not that 'onclusion derived from con- 
versations with parties who were in lav r of a 
quorum more than from those that were op- 
posed to it? A. Well, 1 had very little conver- 
sation with those th,at were trying ti prevent a 
quorum f rom their general actions I thought 
they were trying to prevent a quorum fiom as- 
sembling 

Q. ihen your opinon is based on the fact 
that they were here and did not answer to their 
names when they were called Yiu ase your 
opinion upon those facts? A Yes I would :-ee 
tbem here about the time lor busines to com- 
mence, and then in a few minuets they would, 
be gone. 

Q. The counsel for the State has asked you 
whether there wa> not a large crowd at the 
court house when the arguni' nt was had on the 
\rrit of habeas corpus, and also on the day that 
Judge Frazier d< livered his opinion. Yoii state 
there was? A. Yes, sir. 

Q A large crowu? A. Yes, sir, there was a 
large crowd. 

<j. Well, Mr. Murphy, I believe you are a 
lawyer, are you not? A. Well, sir, I studied 
law, Imt I never practicerl law. 

Q. Have you nut seen 1 'rge crowds at any 
other court? A. Yes. sir, I have. 

Q. Did you see anything more at this court 
than you hnve seen at iiny other courts when 
an important case was on "tria ? iV. i have seen 
a very large crowd when intt resting ease;- were 
being tried. 

Q. Well, state to this court whoth.r or not 
the speeches were not like other s-peeches, on 
the law and lacts, like other c uris you have 
attended? A. Yes sir, they were inihatway; 
tlie only difference I saw was that they appl.*ud- 
ed occasiomdy. 

Q. Well, I ask you if Judge Frazier did not 
try to stop that, and if hed;d not say that he 
wanted nothinsr ot that sort. A. I think he 
callt-d them to order. 

Q. Did you see any person that was apparent- 
ly more exeited and heated m argunii nt than 
Ivir. Trimble himself? A. Weil, I think mt. 

Q. Did you >ee anything thereupon that trial 
on the part of Judge Frazier more tiian a dispo- 
sit i"n iohear and pay good attention to the ar- 
gument ot the c ise, more than any g od .iudge 
should pay good attention to an aigument on 
the trial of any othcn- questiO'i? A. No, sir, I 
don't think I did. He .-eemed t > be veiy calm 
himself. 

Q. Had vou prior to that time b en acquaint- 
e I with Jiidae Frazier? A. No, sir; I think that 
is the first time I s tw him 

Q. And you don't know anytling about his 
previous ln>tir>: or character? A No; no more 
than I h.'ard others say 

Q. i'ou stated, Mr tviurphy, that it was sup- 
posed there had been a caui us. Who did you 
hear the talk from?— nom yotir particular 
friends hereattheCap;tol? A. Yes sir; I think 
so. 

Q. Outs de that circle, d'd you ever hear of 
any cau'us that w;is rverheid fii Nashville? 
Have J ou any knowledge oi any caucus thd,t 



54 



was helii? A. No, sir; I have no personal 
knowledge. 

(i. Well, it was a mere supposition of your 
friends here that the other side, so to speak, 
held a caucus? A. Yes, sir. 

Q A suiipositioa? A. It might have been a 
supposition. 

Q. Well, you know no fact to base that 
opinion upon to sh.w that a caucus was helil? 
A. No sir, that is generally hard to find out. 
When a caucus is he'd it is hard for the oppo 
site party to find it out. 

Q. Weil, it was a mere surmise on your part 
ami on the part etyour friends— a supposition 
that a caucus had been held. A. Yes, sir. There 
were some signs seen about thecapitol 

Q. State if you ever saw -Judge Frazier in the 
lobliy or anywhere el e, talking with the mem- 
be isof the Legislate re during the whole time 
you were a membei of this Legislature? A. >'o, 
sir, I don't recollect of ever seeing him in the 
House of Repres-entatives. 

Q Did you ever see 'idge Frazier in the lob- 
by, or in apolitical assembly? A. I don't rec- 
olect that I did I may have seen him at some 
convention, but I don't know that I did. 

Q. Y^ou state tluityou were present at the 
time of the argument on the writ ol habeas 
corpus. Slate whether anv witnesses were ex- 
amined, or were you examined, or anybody 
else ? A.. No, sir, "no witness w.^s examiped. 

Q. Then the areument was had beioi'e Judge 
Frazieron legal grounds purelv ? A. Yes, sir 

Q. No facts stated to Jud^e Frazier at all? 
A. No, sir, 1 think there were no witnessi s ex- 
amined. 

Q. Just on the lec'al ' rounds of the case? A. 
That was the argument, I think. 

Q. Well, Juiige Frazier in i he trial of the case 
had no facts except what a))peared on the rec 
ord and the petition and admissions? A. I 
d 'U't inow ol any. 

Q. "Where were Williams an'l Martin during 
th it trial"? A. They were here, I ihink, in the 
Capitol. 

Q. Under guard? A. Under guard, I think. 

Q. Was not that constitution ,1 amendment 
passed du-ing the progress of that trial? A. I 
don't think it was. Proba-bly it might have 
been the day alter. 

Q. I mi-an after the comm ncement of the 
trial and befor Judge F azier delivered his 
opinion, wasn't the amendment pa;^sed■? A. I 
rather believe it was. 

Q. Had you been nersonally acquainted; 
wasn't this constitutional amtndminc pa-sed 
by counting Willi. ans and Martin as members? 
A. Y'es, they were counted. 

Mr. Tiimljle— The journal is full on that 

Q. Had jou bet-n long acquainted with Capt. 
"Williams? A. Y^es, sir;I had bei'u acquainttd 
with him for twenty years, perhaps over twenty 
years. 

Q. l>ia you know him while he was Captain in 
the Federal army, in the late war? A AVell, 
he was beyond the line, and I was iu the Con 
feiierate lines. 

Q. You were in the (on federate lines, and he 
was in the Federal lines? A. Y'lS, sir. 

Q. Do you know the fact that he volunteered 
and went into the Federal army, iind served as 
a Captain? A. Y'es, sir; that was the under- 
standing that he was a Captain in the 13th cav- 
alry. 

Q. I a«k you to state — peihaps the Journal 
shows th- s tme thintr. but I reckon you know — 
whether the session of 1.SG5-6 di'in't adjourn to 
meet in ."^ ov m''ir, 1866, and wasn't f is < xtra 
se'-siou called between the time you adjourned? 

Mr Tiimbl —That is admitted. 

Judge Gaut— 1 have nothing further to ask. 

TESTIiMONY OF JAMKS MUIXINS. 

The Hon. James MuUins was next called a« a 
witness on the pa- 1 of the Slate, and sworn by 
the Clerk. 



Question by Mr. Trimble— Were yon a mem- 
ber of the General Assembly and present in 
July, 1866? A. I was, sii\ 

Q. Well, state your name and the couuty you 
represent? A. My name i ; James MuUius. 1 
represent the counties of Bedford and Kuiher- 
ford. 

Q. Wei-e you hero in July, 1806? A. I was. 

Q. When did you come? A. I came on Sun- 
day the 3d, according to my recollection. 

Q, AVeil, yon were up atthe Capitol on the 
5th? A. I believe I was here on the 4th. 

Q Well, you were in the Capitol on the .5th? 
A. Yes, sir. 

Q. Do you remember that "Williams was pres- 
ent, and Marable? A. Yes, sir. 1 came down 
on the train and came into ihe Capitol on the 
4th. The roll was called early, and the House 
adjourned for the purpose of going to a Fourth 
of July celebration on the battle ground. We 
adjourned to meet the next niurning at 9 or 10 
o'clock, and we met the nex'. morning, 

Q. Well, was Williams then here, and Carter 
and Maratile, and others? A. That is my rtcol- 
iection. 

Q. Do you remember seeing them? A. I do, 
sir. 

Q. Did they come into the hall on the 5th? A. 
That is my recoUecton. sir. 

Q. On the nth? A. Yes. sir. 

Q. When did they begin to ahsent themselves: 
do you know that? A. Well, on about the 6th 
or 'tth, I discovered a general inquiry going the 
rounds among them, and there seemed to be a 
gener 1 iiisposition to break up the quorum. I 
speak from memory. The journal is not before 
me 1 woidd i-el'er for particulars to the journal 
itse f. I am now giving this as I remember it, 
a^ one w uld come in and as the 'ournaLs would 
he read in the morning, and the roll called the 
journal would then show how many wei-e 
"present, and if there was a quorum present in 
he House, or that bordered oufiit, it seems that 
tlere would be some tha' would absent ihem- 
selvis. J spofeetoMr. Williamsand toMr.Ma a- 
ble and Marable pledged me hat he would not 
leave the house. I thought that he was going 
to leave. Mr. Williams stated al-o that he was 
Opposed to the amendment, but did not say that 
he would leave the House 

Q "When did he leave here? A. On the morn- 
ing of the loth. 

Q. What did he leave tor? A. To breal? up 
the quorum. JHe and I were very intimati . I re- 
siecti'd lim js a gentleman, and went to him 
and t.ilked to him as such, and he said that he 
would nor make up one o^ the number to pass 
this ;.mendmtnt. 

Q Did you hear .iiiy other members tay that? 
A. I think I did, sir 

Q "Wol:, who in ere they? A. Mr. Porter. 

Q. And over and above they won d absent 
themselves irom time to time? A. Y^es, sir, we 
a;^reed among ourselves ttat we would let some 
ot our mend>ers si ay in the room and get them 
lu if iio-sible. 

Q. Well, Were there any lobby members there? 
A. Yes. .sir. 

Q Which Porter? A. It was the Henry 
county Porter ; I don't remember tha given 
name. The other one never vacated his seat. 
He was a constant member. 

Q He was the Henry county Poiter? A. 
Y'es. sir. 

(J. The other was from what county? A. 
We'l. \Viiyneand Lawrence. 

Q. Was "there much of a rowd in the lobby? 
A. There was a coi siderahle crowd. 

Q What were they doing? A. They were 
opposed t" tlie amendment. 

Q. Was there much excite 
de lof interest. 

Q. .\ great many In the hall ? A. Yes, sir. 

(^. Wnat members did thej' talk of? A. 
They taliped of Britt'e and Will ams and Mara- 
ble and Porter. Porter ieit the house. 



excitement? A. A good 



55 



Q. Who composed the lobby? A. I kuew at 
the time. 

Q. Any of the leadinp: men? A. I havo b^en 
trying to study who it was, and I made m iition 
in the re nark's I made thit it was astouisliin;": 
to me that lea ting m-n would be in the I'ou-e 
lor iile-^al purpo-es or illicit purposes. These 
members were then sitting at the right hand > f 
the stove. Th'-re was quite a cr wd ol lobby 
meni' ers. Tiej' were passing fiomoueendof 
the lia^ to the oth r. and moving about. 

Q. Did you see Williams whtn he was brought 
in? A. Yes, sir. 

Q. Ill custody of whom? A. Under the rule 
of the House, in tie custoly of Can'. Heydt. 
Jarvis and I went in and talked wiih him 

Q. When you h d this tal > wheiv were they? 
A. I as: ed, myself, that the door of the room l)e 
opened wide, and that they be invited to their 

Q. Was "apt. Hpydt there? A. Capt. Heydt 
■was, perhaps, in thi.- ha!l. 

Q. Not in the room with them? A. No, sir; 
not in the room. 

Q. Uo you remember that when the roll was 
called he was not present? A. JMr. Martin 
steppeil to the door, and said, "I am not pri'S- 
ent. and I shall not answer." 

Q. Do you know anything of the broating into 
the Capitol, and lakiug ihein oui of the custody 
of the Sergeant-at-Ai-ms? A. I myself don't 
tnow it. I wasn't in at the time. The crowd 
was at tlie door. 

Q. What hour was that? A. I am a little too 
fast. V/hen I came uu here it WHS abnit dark 
Q. Who were thi^y? A. The Deputy Sher.ff 
and his posse comititus. 

Q. A good many m n? A. I think there was 
from live to seven standing at the frontdoor. 

Q. Di<t 3'ou see what they were doing at the 
Capitol? A. I saw part of it. 

M Ewing— I object in regard to what was 
done by tae Sheriff. The judge makes an or- 
der, bat the judge is not lesponsible. 

Mr. Trimble— That is anew idea that a judge 
can order a sheriif to do a certain thing, to 
break into the capitol when the Legislature is in 
session and take out a couple of members who 
are in th« custody of an ollicer of the House of 
Kepreseiitatives." Thfie is no such power as 
that. No judicial otlicer is ciothed with any 
such power. That is the reason why the im- 
peached is now at the bar, I'ecause there has 
been a flagrant invasion of the rigiit-; and 
privileges of the House of Representative-. 
I insist, ir the court please, tha^ this is a com- 
petent question. J insis that the House might 
have ^ent for -Judge Frazier and taken hiai into 
custody, and the wiiole posse into custody 
and commitied ttiem to jail. I submit that thio- 
ls a legai question. ^ 

Judge Briea— You mistake the objection al 
together. Mr. Kwing said that if the judge 
made a particular order and the sherifl' went 
outsi te oi that O'der, that the judge was not 
responsible for th it. 

Mr. T irabie— The question is whether he is 
responsible or not Ii this is illegal, I tbink he 
is responsible lor ir,. I rhink he is responsible 
lor all iiie consequences that fol'oweil ihat act 
I propose to holti Judge F azier re-ponsibie for 
every act the She iff <lid of an unlawful u i- 
lure under his commani. And what could be 
a hi_'her offense, when the legisla'ive branch ol 
the government, the most important branch, 
than for ajudge to undertake to issue a writ 
or or'<er t" take from that department its own 
metiibeis in custoiy for contempt and disord- 
erly c'<nduct, and breaS into the Capitol by 
for"e and take those two niemliers of the House 
who are in custody under a re-olution of the 
House for disorderly liehavior, and to arrestthe 
Sergeant-at-Aims? Yiai say the judge is not 
responsible for this trial; this is all regular. 
If ihe court please, suppose he House ot 
Eepresentatives had acted as Judge Frazier 



acted, upon the mere letter of the law, witho .t 
regard to constquencrs Supiiose th d the Honsa 
instead ot foriiearing as it did forlxar— I'or its 
conduct was wondcifully forlica'ing — had en- 
forced its liws. The British liouseoi coininons 
would no'. liave waited one hour; but this 
House does not order 'he jielge into custody, or 
the Sheriif and hi p sse to be brought to" the 
bir and put in piisonasit miiht imve done. 
Butwi'ha forbearance that is nnpaialle'ed, 
th.^t House eonde^cen is to make up its rcco d, 
showing that these were members of the Hon- e 
in custody Thev nuke up that record, and pre- 
sent rlie proceedings of ih.- bodv; bu" ihev em- 
phaticall}' deny them jurisdiction. But Judge 
Frazier issues liis warvnnt and the-e men walk 
into the Capitol and take out the members of 
the H(>usf' of Repieseniatives, and you say that 
is jus:ill.ble. 

Mr. Ewing— Jlay it jdease the court, we shall 
si e before we get through how this who'e thing 
may b ;. The gentleman's argument is a ver/ 
good one but ! thiiik it is nf t applicalile. N ow 
I apprehend, Mr Speaker and uiembers of the 

en 'te, 'h t thi- TA'g'slaturo Of I'rnnessee and 
both its bramhes (and I respect them) ; but we 
are not to be scared by the asseriion .t powers 
on the part of either branch W^hatever pow- 
ers they may possess shuU be accorded to them, 
and no more anil no Uss We Mill lesptci; 
them ad will accord to them these ]iowers, 
andifthe^p Sscss the powir ot ihe British 
House of Lords or the British House ot Com- 
ni ins, tin y shall be accorded to them under the 
constitution, and they may h-vet!ie l;en<'fltof 
so much of I arliamentary law as mav be shown 
to apply to the peculiar cause now betbre the 
couit. But. sir, I apprehend that the judiciary 
has some rights. I app:eliend ;hit the jud'ciary 
is a co-ordin:ile branch of the goveruinciit, thut . 
the executive is a co-ordinate branch 
of t!ie government. These are co-ordi- 
nate branches of the g ver mcnt. Tlie execu- 
tive branch has such author ty as is given it by 
the constitution and laws, but the judicial 
(ranch also has its own jiov/ers. ^^s ajudge, 
has nor the judge the power ti> prouounce a 
law nnconstitiu > nal and a nullitj'. I a pre- 
liend tliat n. ' lawyer, no indej eiuleut man in 
tie State • f Tennes-ee. wil' controvert thedoc- 
trine th^st a.11 these departments arcco-O'di- 
nate. These rights and p ivikgc s arenot v gue, 
thi y are vvritten down in books, and by 
tliose de- isioiis in books, by jiarliameu- 
tary usage, so fa'' a^ it aiipli s, and tiy the cnn- 
stitution «e will be goveriicd 1 know that rhis 
court will be governed by ii. Then ajudge has 
some rights, be has some powers, he has some 
duties, and those duties must be i xecutcd at 
whatever haza dof collisioo with any other co- 

dinute branch of the govirnment. Wh t a 
poor and p tiful spectacle w uld that man hav-'" 
afl'orded in the sight of the liouse and of tl e 
country i' he had quailed before thea'temptoa 
the p-irt of the Legislature to assert its power 
under the constitution of t 'State. Because a 
man is brava eno igh to perform his duty at all 
haz ir is, is it to be said that one oi the co-ordi- 
nate branches of the government is so high 
and migbty that be must cower before 
it, and licK the dust at its leet ? You 
see the time has not yet come in Tennessee 
when we are to regard one branch as compe- 
tent to override the other. I say tills much in 
answer to what I deem whody inapplicab e 
on the part of the gentleman who ha-- address- 
ed the Senate. My objection was this, and it 
seeuis to me that there was a misnndeisla"di g 

01 my objection that occasioned this discussion. 
I merely ol>jectcd to inquiring into the power 
of a Sherff under a legitimate order made by a 
judge. I think the gentleman understands, 
and that I understand, and that every lawyer 
unilerstands, that the judge who issues an or- 
der is not responsible for any illegal means to 
which the Shtriff may resort. I say the judge 



is not responsible for it. A Sheriff mav take an 
execution, and instead of levying it as heonght 
to have done hi! may break in a nan's door, 
and then he may peihais be a violator of the 
law. He is then responsible for lis acts as 
Sheriff The j'.idpe is noi. n sponsible for his 
extra violence " lie gives him an execition, he 
says 10 hnn go and <.xecn e that according to 
law, and wiu-n he goi s with hi-, eiecution i he 
exceeds the hiw ~ 

Mr. Trimble— Mr. Ewing, I say he did an il- 
legal act when he put the wa-ruut in the Sher- 
iff's hands, and this was an insult to the Legis- 
lature. 

Mr. Ewing- AVe say !hat he authorized the 
Sheriff to do a certain thing.ani that the Slieriff 
is i.'uilty of no impropriety if the Slieriff goes 
with as much niifmess as tli'^ case demand , 
and executes the jmigment of the court. Then 
the ju i(<e is not resp msible, wh tter the 
Sheriif ac ed correctl ■ or not 'i'he question 
mav arise whether he whs gnilfy of an error o 
a mistake, and whether he ait.d correctly or 
not. All that mmII come up so far as Jiidge 
Frazier is concerned on t;ie olUcid adiudica- 
tion of I his case. But the question now is 
whether the Sheriffin the exe<ut;ion of the war- 
rant placed in his hands, which was 01 couise 
to be carried out with sticti mildness as tlie na 
ture of the c .se permitted, 'O hat the pioi'cs? 
Avas executed effectually — if he tia^ been guilty 
of acy impropriety, or inde. ent, or vieileut 
language, then the Judge is in no manmr re- 
sponsiile for tliat. 

Mr Mavnard — The question seems to be verv 
forcibly stated by the oounse!. The Hoiis ■ of 
Representatives coraphiins before this high 
C'jurttliat their constitutional rights hive been 
invaded.' hat tnfirrii-hts have been gro s-lyout- 
raged by the action of a majori i y w holi y u nauth- 
orized and unwair mted oy law. Their rig! ts 
are called in qui-stion; tliey are met by iieli- 
auce. This makes it necessary for this court 
to settle, and I hope t) s -itle foe all time, wliat 
arc the rights and privileges and pi eiogatives 
of the people. Thosi? are the questions we ha\e 
to argue; and settle. The important question 
now is, as wo expect to sliow, tbit theinipea* li- 
ed, with a lull knowledge that these men, Alar- 
tin and Williams, were in the custody of Ihe 
House of Representatives, gave nn oider to his 
Sheriff l')r his 11 sse tp rescue them and take 
them out forcibly fr )m the cu tody of the 
House of Representatves and to seize the exi c- 
utive otlicer of the House of Representaiive-, 
the Sergeant-at-Arms. We propose to show 
by this witnes-. th it the Slier if and his p.;ss^i 
came tip here and did this veiy thing, — bi-eak 
int > tile I apitol md tak'.^ certain parties who 
were held under arrest by the House of Kep 
reseutatives, ;nd also their executive officer 
Iti^a q"estiou of evi'len ■« simply, whether 
we shall show what was done by the Snerilf 
and his posse under the order and ruling of 
the court. 

Mr. Ewine— Did the Sheriff release these men 
that were uiider the custody ofilii Sergeant 
at-Armsy lie conies and ^ays that Iheybroke 
down the door. That is what we object to. The 
Sheriff may liave exceeded Ins ant ority 

Mr. Ewing— We come here in no defiant spirit, 
and whin we are met upon collateral questions 
wiiich render wholly unnecessary anydiscus- 
fcions that may arise be ore tiiis court, we de- 
clare what our rights are, and we declare them 
with sucli force ami I ower us we possess. We 
have no siiirit of defiance here We come here 
mere'.y tosay that we are innocent under tr e 
1 iw. A .d we ;isk flii- cuirt ogive IS a fair 
hearing, and we contend that judges have 
right.! as well as legislalors 

l^ending the argumuiit, the court aijourned. 



THURSDAY, MAY 16, 1867. 
The court met at the usuil hour, the Presi- 



dent in the chair and nineteen members pres- 
ent. 

The Clerk then read the minutes, which were 
approved. 

Mr. Maynard— Mr. MuUinshas lefr.town. The 
managers hav not yet conchuled the 
e.xamin tion. We have O'her witnesses in 
attend;ince. On M>'Uday Mr. Mullins will 
probably return, and then if there be no ob ec- 
lion, his e.xaniinnti. n will 1 e rfcsumetl * 

Mr. Ewing — We have no objection, may it 
pie tse the court, th 't Mr. Mullins shoul 1 be ex- 
amined, eir his examinatifm continued, provi- 
ded he appears before the coiclus'on of the 
testimony on the piirt of the State ; but w'. 
should object to his being summoned exc<pt it 
be as a rebutting witne-s afterwards, and we 
object to his testimony going before the court 
as it now st miis. unless we have an opportu- 
nity oleross-examining before the conclusion 
of tr,e testiinonj on the pan, of the State. 

Mr. Trimble— He will be here on Monlay. 

Mr. Ewing— Well, if you are not through by 
that time we h.tve no ob ectii n. But we sha;l 
object to h s tistimO'y going before the court 
as it now stands, unless we have an opportu- 
nity to c OSS-examine. 

TESTIMONY OF WM. Y. ELLIOTT. 

ThP Hon. Wm. Y. Elliott was next called and 
swnn 

Question by Mr. Maynard — State yotirname 
and residence. Answer. W. Y. Elliott, Mur- 
freesi oro, Tenn. 

Q. ifave you any connection with ei her 
branch of the Legislature ? A. I w:ts a Repre- 
sentative liom Rutherford county in the House- 
of Represeutaiives. 

Q. Were you in uttendance at each and every 
ses^ion of July, 1668 ? A. I was. 

Q. Throughout the se-sion ? A. I don't know 
of being absent any day. That is my recoUec- 
ti(in now. 

Q v\ ere you then and before that time, per- 
sonal y acquaintedin the city of Nashville ? A. 
I had consie.erab e acquaintance in the city. 

Q. Had you an opportunity of knowing the 
state and temper of ihe public mind at that 
lime nnd observing it? A. I think my oppor- 
tunities were about such as would be those of a 
citizen of i^ashv lie and a member of the Leg- 
islaiuie also 

Q. What was that con-iition and temper of 
the public mind '? A. I think there was a very 
higli degree of political excitement 

Mr. Kwing — We are to be understood as ob- 
jecting to this mode of examination, but as we 
under?t:ind the com t lo have deciiied this ques- 
tion in the case of the previous witness, we do 
not object every time. 

Q. What was the *eeling with regard to the 
main object for which the 1 egislature had been 
convened, for the ad ption of the constitutional 
amendment'? A What was the public feeling, 
do I nni'erstand you to say? 

Q Yes? A. As far as I was capable of know- 
iuu' that feeling I thought it was averse to the 
ratification oi the amenduient. 

Q. W;i- tliere bitterness and acrimony mani- 
fested, or was it simply a preicrence? a. I think 
there wus a good deal of bitterness in it. 

Q. Dili tliat e.xtend to any portion of the 
House of Representiitives? A. I probibly could 
not answer that uhle-s it was by inference. I 
d n't new remember th.Mtl know certainly 
any expressions from indviduals on that suu- 
ject. 

Q. Were there any efforts made to defeat the 
action of the i.egi-lature by ])reventing the at- 
tendance of a quoi uiu in ihe House'? A. There 
were quiie a nuraber of the members of that 
House that ucted in S'lcli a manner that I 
thought that they weie cooperating together 
for the purpo:-e of preventing a quorum. 

Q. ITea-e statj iu your own way, what v. as 



5T 



done and what led you to the inference that 
you have stated that there wa; a purpor-e to de- 
feat the action of the legislature aud 1 1 pre 
vent the assembling of a qourum. A. 1 ob- 
served that in the meeiiig of the Hous-e oi 
Kepre-eiitatives in the fir.-t day: of ts se-sion, 
probably the-e wa a on ert of action, and a 
con ert thence forward, with a certain class of 
that body; they would absent themselves and -r 
certain circnmstanres, first one and then an- 
ott-er. But it wa- so marked that I thiuii it es- 
cape t the no:ice of no one of ihat holy, that 
whenever we approached a quorum, that fither 
one or auother niemi)er would absent hiuistlf 
so as to reduce tlie House below a quorum. It 
was so marke'l that I remem''er I made some 
remark more jocular than o'herwiso in rela- 
tion to it, and'whic i fastened it upon my mind, 
that some others of tis would absent ourselves 
ti 1 they would get in, that tiiea we would run 
in and closet e oors on them, so to speak; that 
is to say, we would have a quorum by catching 
those parties who had tried to defeat .1 quorum ; 
that we wotild catch them unappiised in the 
House of Kepi esentatives. and thereby consti- 
tute a quorum. I believe that is ab^uit what I 
said 1 had DO conversation with anybody on 
the subject. I stui'iously, I might siiy. avoided 
any coiiversation upon the sut)ject,and particin- 
larly with those parties that I suspecttd of en- 
deavoring to jjrevent a quorum. 

Q. Were persons, not connected with the 
House, particip t ng with the-e gentlemen that 
you refirto? A. I could not s<iy that, because 
the remarks that 1 speak of refer o their action 
as members of that body, and while in <hi^ hall. 
Idon'r, know that I saw other partii s in the 
hall conversing with them or co-operating with 
them lor that purpos'^^ 

Q Did you observe anv outsiders, or as they 
are sometimes termed, lobbyi-ts, ijreseni? A. I 
believe I don't call to mind now any person in 
that (onneciion. 

Q What f-teps were taken to secure a qtn- 
rum, and secure the attendance of members 
who were in ■ he city ? A. llie ordina y rules 01 
the iioue were enfi.rcei!, wheie there was 
an order from the Sp' aker to the S' r- 
geaut-at-Arms nn i Door-keepers to bring 
la members, as was customary, to make 
U}> a quorum, and when that could not be (tone 
ther were more suoimary orders issued to 
bring them in. A .Sergeant-at- Arms was appoint- 
ed for that purpose in addition to our ordinary 
one. He was emjiowered to bring them in by 
force; tiiat is as far as the House was empow- 
erea to do. 

Q. Were you in 'hp city at the time the habeas 
coipus was issi ed? A. Yes, sir, 1 was here. 

Q. Did you attend at the proceedings in the 
Court in that case '? A. I attenilcd only lor 
about an hour, 1 suppose, during the argument 
in the case. 

CJ. Wtio was addressing the court at that 
time? A. When I entertd the room the geti tie- 
man who preceded Judge Hrien was ao .ut fin 
istdng his argument, and after that Jiuige 
Brien addressed the court. That is all I now 
remember. 

Q. .John S. Brien ? A. Yes, sir ; Judge John 
S. Bri' n. 

Q. Wh:itwasthc» number present in attend- 
ance at the court, as spi ctators or otherwise '? 
A. Well, sir I have very 1 ttie idea. I think 
the hall wa- croW' ed so that it was very un- 
comfortable 1 don't know what numb< r the 
hall will hold ; probably three hundred per- 
sons. 

Q Was there any inten uption or demonstra- 
tion of api liiuse ^^ hile Mr. Trim.de wds speak- 
ing? A. I am not su'ethat 1 remeoiber any 
emotion or excitement in the court. 

Q. How was it when Judge J'.rien was -peak- 
in ^ '? A. I til ink there was a good deal of de- 
cor m and respect in the crov\d while I was 
present. 



Q. D'd you hearmny demonstrations of ap- 
plause while you were there? A. I could nut 
say that I did. I don't now remember th it I 
did. There was a great '^eal of earnestness, a 
great deal of excitement, but as I remember it, 
nothing that culminated in aiiplausp. 

Q. Were you present at the time the decision 
was given by Judge Frazier? A. I was not. I 
WiS not in the court roi 111 or pre-ent at any 
other time that I remember, save just at the 
tiuie I speak 01'. 

Q. Were yott present in the Capitol when the 
Sergeant-at Arms and the members under ar- 
rest w retaken? A. When toeyweretaken out 
of the control 01 tie Sergeant at Aims of tne 
Hou^e"? 

Q. By the fJheriflf and his posse? A. I 
was not, if I remember right. My 
impressions of that transaction are, that 
it did not f>c' tir at any hour du- 
ring the si' ting of the Legislature or the usual 
hours of sitting. I was in attendance almost 
uniformly, and almos every hour tha'^ the b' dy 
was in session, or proper lor it to b • in session. 

Q Did you hear the Sheriff make his demand, 
or did you see him ac all? A. I did not see 
him 

(J. Is there any other iact in connection with 
th s case that yott recollect that you h we not 
stateii? A. I merely remember fonn thing in 
connection with the fact that the Serg.a.t-at- 
Arms broitght the gentlemen who had been 
arrested by him, and reported the faci to the 
House, :ind I believe thut under the ord»^rs of 
House they were reamed, fo ming a quorum 
inconnec ion with the number [present. 

Q Please stite whether the serg^ant-at- 
Arms reported his action under the order> of 
the Ilriu^e irom time to time? A. I think he 
did. I think he made regular reports to the 
House 

Q State whether his oflicial action was ap- 
proved and su-tained by the house, acting as 
such? A Mv memiiry at this t)nie is tluit.hey 
approved andsustaintd the acts of theSf rgeaiit- 
at-Arms appoiuted under a resolution of that 
body, 

Cross-I^xaminaiion.— Question by Mr Ewing. 
Are you acquainted with Judge Frazier? A. 
I am 

Q. How lone: havp joubeen acquainted with 
him? A. I think itis"pobsible that it was the 
lall of ]8()3 thit I met Judge Frazier first, and 
made his acquaintance as a citizen of our 
county at that time. 

Q. Was he residing in Rutherford county at 
that time? A. He was, as I underslo .d; I un- 
derstood h-^ wa> living six or eight miles jrom 
M urf ) eesboro. 

(J. Was he nut a refugee from his own d s- 
trict in consequence of his Union sentiments ? 
A. That is the iaipres>ion I had. 

Q. W as h not regarded as a Union man? A. 
We so regarded him, and he was understood to 
be sui h. 

Q Do you recollect anything about his ap- 
pointment as judge. or know anyt di g about it? 
A. 1 heard only that he was our Criminal Judge, 
and ai terward 1 saw him presiding on the bench, 
and met with him frequently. 

Q. rt^ere yon acquainted with his general 
character iii Ruth rford county, as a judge and 
as a man? A. I think it was very flue. I think 
that ho bore with the citizens of Rut!ertord 
county a very rejjutable character, both i;s a 
judge and as a citizen 

Q D d he not give universal satisfaction 
there? A. I heard no complaint of Judge Fra- 
zier. 

Q. Did you see Judge Frazier on the bench 
the day you were in the courthouse A. Yes, 
sir. 

Q. Did you see any manifestation ,"of excite- 
ment on his part? A. 1 tiiink that remark re- 
vives my memory upon 'he question asked me 
by Mr. Maynard, and which I would like to an- 



58 



swer before answering yours now. In connec- 
tion with some dt^monstrati^ of boisterousness 
I tliink til t there had been some little fiemon- 
stration about which the Judge called the 
crowd to order and asked them to preserve the 
dignity of tiie court. Outside of that I notiied 
n'thng about Judge Frazier of exc't' ment. 
The character of that nianife>titio;i at this mo- 
ment I do not remember. I just remember that 
it was somtthiug that dis'urljed the argnm^ ut, 
some boisterous nose in'the company. Wiifth- 
er it was in response to any sentiment or not I 
do nor, remt- mber, but I remember Judne Fra- 
zier's exercising his control over the crowd by 
stating to them that they must keep order anil 
preserve the ilignity of tiie court — something of 
that character. 

Q. Do you recollect any speech in answer to 
Mr. Trimble's speech by ."fudge Brien, whe'her 
he made any remarks in regard to this petition 
that it was purely a (luestion of law, and 
whether Judge Frazier made any remark? If 
yotican recol ect any remark, piease state it? 
A. I must say th 1 1 believe I don't retain any 
distinct recollection of what transpired in con- 
nection with the remarks ot Judge Brien, but 
at the same time I do revive tae recolectiou 
th't there was an alttrcati .n bttween them. 

Judge Brien— When I commenced you were 
incouit. When I commenced the argument I 
said thi'.t this was purely a legal proposition 
and had nothing in the world to do with p di- 
ti( s, and that I wanted simplv to ar.iue it as a 
legal proposition, and whether the court; didn't 
remark to me .it that time that; there was only 
one q'.iesti m and that was a legal question, and 
he hoped the counsel would refrain trom sav- 
ing anything about politics. 

The Witness— I believe that was about what 
w s stated. Cpon your sta ing it, I hav< some 
recollection that there were some remarks 
made of that character. 

Question liy Mr. Kwing— Do you recollect the 
character of Judge Brieii's argument, whether 
it was iiotoalm, and seeming to he an ;ittempt 
on his part to examine the legal question, or 
whether it was violent or calculated to excite or 
not ? A. VVell, sir, i think it was a very strong 
political speech, and Mr. Tiimble probably sug- 
gested to him that he had started out svith the 
idea that it was to be a legal argument. My 
imprtssinns are that there was something fif 
that kind said between them ; but 1 am not sure 
thatthi- is a correct impression. I must state 
that I went n^it to hear the argument meiely, 
bu;, as a matter of curicsii<y, dropped in to 
spend a few moments there, and haven't treas 
ured up or thought of the speeches siuoe. 1 
paid but very little attention to it, and th.^.^e re- 
marks revive a very faiut impression on my 
mind. 

Q. Do you know whether Judge Frazier h s 
ever taken any part in political meetings? A. 
I never heard of the Judge participating m any 
c nvention or caucus, in any political meetings, 
in any capacity. 

Q. bid you ever hear him talking politics at 
all? A. 1 have had some business transa(tions 
with Judge Frazier. Our conversations have 
always turned upon business, and I don't know 
that I ever lieara him have a political conversa- 
tion in my life. 

Q. Well, during all this time tint the House 
was attempting to get a quorum, d d you see 
Judge Frazier in town, talking with anybody — 
was he in the lobby? A. iViy impressions lOw 
aiethatl only saw Judge Frazier at the time 
he was presiding, at the time I speak o', hear- 
ing the speeches of Judge Brien and Mr. Trim- 
ble. 1 tnink I did not see i.im, even on the 
street, oranywhe>e. 

Q. Did you meet Judge Frazier that morning 
upon the street as he was going up to deliver 
the opinion, or some morning during tlie tiial 
didn't you have some conversation with him? 
A. I don'r remember either of meeting him or 
ol having a conversation with him. 



Q. Somewhere about the Sewauee House? 
A. I don't know that I remember meetins 
him. ° 

Medirect Examination. — Question by Mr" 
Maynard — Was Ju'ge Fraziei- arquainted here 
in Nashville, and did he have an oppor unity of 
knowing and uiiderstandimg the peopl; and the 
temper and sta^e oi public, sentiment? A.I 
suppose Judge Frazif^r hud much bc-iter op- 
portunities than I would of knowing the tem- 
per of the pe p'e here. 

Q. Do you know with whom he associated! 
A. I do not. I suppose fiom hi^ official capaci- 
ty that he associated with the bar and lawyers 
principally of the city. 

Q Well, do jou know with what class of 
persons lie associated, whether wiih those who 
were friendly to the government of the State, 
or those who were understood to be averse to 
it? A. loOi.ldnot state thit I kutw Judge 
/razier'sasaociatious at that time or at anytime, 
scarcefy. 

Q. Do you know whether he associated with 
the gentlemen who are now emploj'ed in his 
de e. se, at that timt? A I rarely saw '; im in 
company with any one m particular. He was 
either coming or going from his courts, i met 
him on liusiuess. I had transaited business for 
him, but alter his removal fiom the county of 
Hutherford, which was some'inii' prior to this 
occurrence. I knew very little of his i.s^ocia- 
tions, if anything more than just ■ general im- 
pression that 1)6 associated with the bar of the 
city. 

Q. You are not able to state, then, with what 
class of persons, that is persons of what 'tone 
of sentim ut, he made his assoidatioas? A I 
could state an impre-sion that i have. I could 
state what I believe to be his associ itions, and 
they wereave'se to those ot the majority of the 
Legislature, those who were trying to get a 
quorum m the Hiuse. I never heaid anybody 
spi'ak of associating with Judge Frazier par- 
ticu arlv, or his impressions or views or t is gen- 
eral notions on the subici;;, with whom I a.-so- 
ci ;ted generally myself. 

Q. There were no associations between you 
and him e.xcept of a business nature? A. It 
was iniuci pally of a business character. We 
met socially, and merely met andspoke .nd uev- 
erentere<l into any conversations that I know of 
either of a sociai or a political character. 

Q Well, was that so while the war was in 
progress ? I understand youcaue to vourtovvn 
in 1<S61. A. Yes. sir, t at was so Ourasst- 
ciations had never been more than that of for- 
mal acquaintanceship. TIih meetings weie very 
courteous and very iriendly, so far as I know, 
on the partfif both of us. 

Q. How long did he continup to live in your 
town? A. He lived remotely fiom r,he town, 
eightmiles, I thinu, and my impressions are, 
wittiout knowing anj thing dehniteiy, that it 
was in the neighborhood or a part of iwo years. 

Q You s.iy he never talked with you about 
pub'ft matters orpiivate matters anyfuither 
than to pass and repas- m a friendly and ailable 
manner? A. ies, that was about the extent of 
our associations 

Q. State, Mr Elliott, whether you ire known 
to be one of the most active and prominent 
Union men ia that county. A. I think it was 
Kcnerally understood that I was a thorough 
Union man, unque-tionably. There were oth- 
ers m 'le prominently so, and kuown equally to 
be Union men 

Q. Do you know what Jud?e Frazier's habts 
of intercourse were with decided and nctive 
Union m;;n? A. 1 tnink Judge Frazir's inter- 
course was ill ways very pleasant, and cour. i oits, 
and social, withthe citizens of our county, and 
with the Union ir,m oi our county. 

Q Do JOU k now whether he conlerred with 
them upon public topics any more than he did 
with you? A. I have no knowledge upon that 
subject. 

Q. Well, how is it with these other gentle- 



59 



men that yow sent out after to brinp: into the 
House and keep in tneir places; had they been 
Union men tbrmerly? 

Mr. Ewing— We ol)jeet. There is nothing in 
our cross-examination to bring that out. 

Question Dv Mr. Majnard— You have been 
asknd about the discussi>n at the court house, 
Hnd in reply t-> a question that was urged, 
have said that you regai-ded Juilge Brit-u's 
speech as a very strons' p diiical speech. State 
■whether its tone v^as friendly or h.istile to the 
State Government? A I did not looli upon it 
as liicndly at all. 

Q. Mate whether the outbreak of feeling was 
or was not governed by expressions of hostilit 
to the government. A. 1 think I ans-vertd 
that ))y ittiting tliat I did not lenunibin- that it 
■was an expression of t eling or f-eiitinient that 
there wa disturbance in the crowd, and a 
manifestation oi some character of exciteme t 
which c I lied down the Judge's disapprobat on, 
who isk'-d thi- silence of the audience. 

Recrosa- Examination. — Question by Mr. Ew- 
ing — I wish to know when youderiv* d that'im 
pression ttiat you spoke of "in regard to Judge 
Fiazit-r'? 

Mr. Maynard— Well, I suppose the practif-e 
may as well be settled here as at auyother 
point. The rule of eviden<'e is, as ihe pro- 
fession vc' y well know, that the witness is ex- 
am ned, cross examined, re-examined, and 
that is an end of it. On the re-ex mnination 
the rule is that no matters can ne gone into ex- 
cept such as have been touched upon in the 
cross-ex-.imination. i he rule was made in the 
examination of this witness upon a question, 
that I a^ked ;;S to the standing of Mr. Wil iams 
and Mr. i arter, and as counsel have thought 
prower, and I don't say that it was improper 
by any means, to a' here to the rigorous and 
strirttechnii-al rules, I will ask the court to de- 
cide whether they shall he permitted to go on 
with a further cross-examination. 

Mr. Ewing— Thei e is no way of argu ng that 
question but by getting books, and we haven't 
them here I tti nk it i«a well establi>hedrulc 
in courts of law th t where a witi.ess is exam- 
ined in chief, where he is cross-examined, 
where he is re-examined and n> w matter comes 
ou' upim the re-examinat on, that we haven 
right to exumine aL:ain in r>-giird to that new 
matter. I think that is very well settled. We 
have u'-> Greenleaf here. 1 think we had Letter 
bring it. 

Judge Gaut — Will t'le gentlemrin indulge me 
for a moment"? 1 i xpe. t all t' e members of 
this court have been in c )urt before, and a good 
many of ihem are lawyers. The rule of 
law is that 1 he party in trod uT'ifg the witness 
examines the witness in ihief, and then the 
other side has a liglt to cr^ ss-examine. 
Then the pa tv who introduces the witae-s h s 
no right to go uto any iiew matter, but he may 
re-examine as to anything brought out on the 
cro^s-examina' ion, and if in that examination 
the witn«ss s ates a new fi'Ct, as he did in thi^ 
case, that he hud formed ari o^iinion, then s-ure- 
ly the liavty who lir^tcross examine i has aright 
to havfl an explanatio I to St ow how or upon 
what Vjasis hr fovra d thai opinion, and certain 
ly no law ye will di ny that. 

The f;bji:ction was withdrawn. 

Hecross Examination. — Q. Will you state 
how you del ived that impression in resard to 
Ju'lge Frazier's being ■ ostde to the majority cf 
the members V A I beMeve Isiidlnever m. t 
him in con panv with those whose sentiments 
wee of a similar character to my own and 
with whom I a^eneraily as ociated. I pres me 
from the lact that I did not happen to meet him 
in the round of associat onslhad. thatof course 
he had a-sociations with the oi posite p;irty, for 
we were very distinctly >et apart at that time. 

Q. Do you kniiw of his a-sociation« with any- 
bouy outside of his duties as a judge ? A. I do 
not. 



Q. Are nothis assciatlons with all the Mem- 
bers of the bar, so far as you know, of a social 
and friuuily chaucter ? A. Yes. 

Q. Whether they w( re on the one side or the 
other of polito '? A Yes, sir. 

Q. Uo vou kno-\v of his having associations in 
particular with anybody else'? A. No, sir, I 
know very little of his ^associat'ons, as 1 st ited 
at first. He ■tt'as an afl'able ai'd court' on? gen- 
tleman, and met with the bar principally as his 
associates. 

Q. Well, not meeting with those with whom 
you associated, might not this have arisen irom 
his indisposition not to associate ■with any one 
politically '? A. Yes, sir, it might have been so. 

TESTIMONY OF H. M. BRAMBLE. 

H. M. Bramble was then called by the State, 
and sworn. 

Question by Mr. Maynard— State your name 
and place of residence. Answer. H. M. Bram- 
ble, residence in Nashville. 

Q. Where were -sou living and how engaged 
in July, 1866 ? A. In July, 1866, 1 was employed 
bv Capt. H' ydt as a deputy. 

"Q. Employed by him in his official capacity 
as Sergeant-at Anns? A. Yes, sir. 

Q. What did you do in that capacity? A. 
The first thing 1 did was to gowiih a gent e- 
manb^ the name oi Harbert, to Jackson c.amty, 
Hud bring in Mr. Martin, a Representative of 
the House. 

Q. Go on and state all about what you did. 
A. Well, we brought him m here and Uelivered 
him over to Capt. .in He. dr. Afte-thutI was 
emploved by Captain He\ dt, to see that. Wil- 
liams "di 1 not leave the Capitol, and I was 
)daced here to keep them from le..ving the Capi- 
tol, both of them. 

Q. Where were thev kept? A. They were 
kept at first in the Speaker's room in the Hall of 
the House of Representatives 

Q. Well, after that? A. In the next room, the 
next one this way from it; I don't remember 
what number it is. 

(l- 1>;(1 Martin make any objection to coming 
to Nashville? \. i\o sir, he said he would have 
oil e.ted to coining here if he had known how 
things were alter he got to Gallatin. 

Q \\\v.\t did he mean by that? A. When I 
served the warrant on him I to d him thai if he 
didn't come along peaceably, there probably 
would be s me cavalry up theie and bring h m 
down, and he>aid that he would come, ami af- 
ter we got to Gallatin it was found that there 
was an order a.<ainst any soldiers bciig givtu 
for that purpose. 

Q That was what he had reference to? A. 
Yes, sir. 

Q. Had he been here before during that ses- 
sion? A. I undei stood he had. 

Q. Hid he say anything about it? A. He said 
he had been here. 

Q. Di I he give any reason for leaving? A. 
He told me the County Court was In session at 
Gaines 'oro, and he had to go hi me. 

Q. Wht lime WHS it thai you arrested him? 
A. I think it Wi'S the 13th or 14fh of July. 

tj. Well, did he say why he had noi come back 
after ttending the C"unty Court? A. No, sir. 

Q. Did he say anything ab >ut an attempt be- 
ing madet o defeat the acti. n of tie House by 
preventing a quorum? A.I don't think thai I 
heard him make iiny reniiirks about it. 

Q. Who was along in company with you? A. 
Howard Ha bert. 

Q. How bmg did you retain these gentleiren, 
Wdliams and Martin, in cu-tody? A. I was 
here from the 15th, Mr AVilliams was taken 
away the evening of the 19th, and Mr. Martin 
was taKen awav, 1 should think, betW' en three 
and four o'clock on themorning of the 2i)th 

Q. What time on the 19th was Mr Williams 
taken a aA ? A It was alter 6 oN lock, be- 
tween 6 and 7 o'clock. 



60 



Q. By wboin were these men taken? A. 
There was only one gentleman in the crowd 
that I knew, that was Oenuty Sherifl" Shaw. I 
knew several others by sight; I didn't know 
their niimes. 

Q How nuny were the»e in the crowd? A. 
Well, 1 should judse there weie about fliteen. 
The'e werj at least fiiteen outside ot the budii- 
ing c tmoring: to get in. 

Q. Was the building closed at the time they 
came for Mr. Williams? A Yes, sir. 
Q. Admittance wsis demanded? A. Yes, sir. 
Q. What was thp reply? A. If was abnut 6 
o'clock — about lour minuies past 6— when I saw 
thrm com ng up the hill, and there was a col- 
ored man who was watchman here, and had 
charge of the biiildina, and Capt. Hevdt was 
awHy that evening. He came to me, and want- 
ed to know what he should do, and I askel 
him his oiders. His orrlers were to close tlie 
building, and allow no peison to come in afier 
6o'c'ocK. I told hirnhehad better close (he 
doors. Before they got ud he had the doors all 
closed, and iMr. Sliaw caii^e up to the dour, and 
rapped on the window. I went ihe^e. He said 
he wanted to com • in, I lold him there was a 
watchman there that h;id charge of that, and 
had his orders, tie said he would go and i-ee 
about it. He started out. and several ot tde 
party outside said that he had gone to see Judge 
Frazier. He came back a<rain, and beckoned 
me to another door, and told me that he had 
orders to take that man out, and he M'as 
going to take him out. I told him that I was 
no" waiehiian of the Capitol, that I had lo 
right to open the doors, and I should nor, oi)en 
them. There were several members up in ttae 
House, and they came down, ani they could not 
get out without letting this party in. h'lnallj'. 
it was decided that it was best to open tlie 
doors and let them in They came in, but I 
think the Sherifl"thoueht they "were going to re- 
sist thorn and not let them take Williams 
away. Theie had been ^ome cutting nii in 
there — d mcing, or something of that bind— and 
he said tliey were ready to light the thing right 
tnroash. 

Q. V/ho said so? A. This Sheriff. He said 
they Wi-re going to take the prisoners. I doa't 
think there was any one tiiat thought of resist;- 
ing at all, but they were running around th" 
building and watching all the points, and try- 
ing the windows. 

Q. Well, what did they do? A. They took 
Wr. Williams. I prc'tested against their taking 
him. That was all r could do There were only 
two or three oi us and about lifieen of them. 
Thati-;, two or three of those that had him in 
charge. 

Q. What time do you sav that was? A. Be- 
tween six and seven o'clock. 

Q In tlie morning or evening ? A. In the 
evening. 

Q. What did they do with Mr. William- ? A. 
I do not know. Tuey took him out of the build- 
ing. 

Q. Were this company of men that you speak 
of armed ? A. I don't know, sir. 1 didn't ste 
any arms. 

Q. You say, if I un<lerstan'l you, that they 
first saifl they would go lack and get ordi rs 
from .Judge Frazier ' A. No; he said that he 
would go down and sec about it, and some otthe 
men that were with him said thtthe wa- going 
to s^'e Judge Frazier. He lold lueait. rwards 
thiit he ha i onlers to break trie Cipitol in alter 
h- got in. 1 forket whether it wa> the titne he 
took vv illiams out or M iriin. I remember ve>y 
distil ctiy his making th' remark that he had 
his orders, and could tear the Lapitol down 
but what he would take them. 

Q. l>id he state who he had his orders from? 
A. I understood that he got th' m from Judge 
Frazier. 

Q. He claimed to act undi'r his authority? A. 
Yes, sir. 



Q. Where was Mr Williams at the time he 
he was taken out of your custody? A. He w.s 
in the first room this side of "the Speaker's 
room. 

Q. Were you keeping him there by authority 
of the Sergeant-atArms of the House? Ye , 
sir. 

Q. And he by the orders of the House of Rep- 
resentatives? A. That is what I unders ocd 

Q. tud they f oiue b.ick any more, and if so at 
what time. I mean the crowd you refer to? A. 
Well, the same crovi'dcame back. I ^houM think 
there were about thirty in all came baekin the 
morning. 

Q. What time in tbe morning? A. Beiween 
th ee and four o'clock. I should judge. 

Q. Were you present at the time? A. I was 
in the hall of the I'iouse ot Representatives at 
the lime. There were two other men down be- 
low when they brolie into the buihiing. One of 
them oime and rold me that they ha'l broken 
in, and I started out of the h 11. There were 
about ten of them who came up ami demanded 
Mr. Martin. I protested against their takin>t 
him also. 

Q. Well, go on and state what was done. A. 
Well, they took him out of there and took him 
ofl". J didn't follow tiiem up. 

Q. Wiuit w.is the number that Avas along at 
that time? A. I should think there were about 
thirty who came up to the, ( apitol; about tea 
(^ame up ^tairs, and tt.e other party was taking 
Heydt nom below, guarding hiai. 

Q. » an you tell whether tliey were armed? 
A. Well, there was one watchman below. I 
suppose they were armed, tde ma'ie «ome re- 
sponse down there, and some one of the party 
made ihe rei>iarji to ••shoot the damned Yankee 
son of a b — ch.'' 

Q. Who made that remark? A. I don't know 
the man's name, t under tood afterwards that 
it was one of ihe city poiue 

Mr. Ewing— I wish to know wheiher you 
heard the remark? A. I heard the remark go- 
ing down stall s in the hail. 

Mr. Miynard — Well, who was the person al- 
luiied to by the remark you reler t"? A. It 
was one oi' Captain Heydt's dcfjuties; I don't 
know his name He is a <l scharged Ferleral 
soldier; I tliiuK he was oneo. the appuiniees of 
the Mctrop .itan Police. 

Q Do you know what was thecharacterofthe 
crowd that came up to the Capitol to take these 
men, whether they were d scharged sokiiers, 
and If so, irom what army thev were < is- 
charged? A The hist time Captain Everett 
wa^ h re I underbto d he wa^ a rebel soldier, 
and there was a lieuter antol the riigh police by 
the name of Alexa-'der. They were the only 
ones I knew. Several others I knew by sight 
were night police here in the city. 

Q. Do you know an\ thing about their getting 
into the Capitol when they came in the inorn- 
in.: ? A. I saw m here they j^ot in. They cad 
all go', in beorel went down stairs. 

Q. Yo I >p.ike or the nire>t of t aptain Heydt. 
State what >. ou know about that? A. Thev "had 
him our, in the tall. I came up with Sheriff 
Shaw when he came up alter Martin, and ^\ hen 
we went down they wi re ■ ear the front, door, 
and had him out there. 1 1 idn t kn^>^' anytldng 
about their going into his room. In fi<t. filon't 
kni'W that lhe> were in the buiidiug at all 
when th se men came up a'd reported to me 
ttiat they were in. 

Q How were they treating Capt. Heydt ? A. 
Well, I didn't pay any atiention. They wa ked 
off with him, 

Q. Do you know whf^ther they treaed him 
wir.li unnecessary ruileness or not ? A. No, sir, 
I do not, 

Q. Were you at t'le court when Capt. Ileyd 
was be ore fhe court ? A. 1 was in tnere a le>v 
moments at the ( lo^'' if it. 

Q. Were there many persons present ? A. 
Well, yes, ther>.om >vas pretty well filled. 



61 



Q. A good deal of excitement? A. There 
appeared to be some exciteraeut. 

Q State whether or not „here were any man- 
ifestations of applause ? A. I did not no. ice 
any. 

ii. You have stated that these gentUmen 
Wire detained by the order of the Sergeant at- 
Arms under the authority of the House, as you 
understood? A. Yes, sir. 

Q. State whether any unnecessary rigor was 
exercised in relation t "them any rnore tlian to 
restrain them? A. That was all, sir. We 
v;-ere ordered to keep them in the Capitol. 
Those rooms were assigned tfiera when the 
Hoase was in session, and only at tdat time. 
Outside of that liour the oriiers were not to al- 
low tlicm to leave the buddiiij^. 

Q You say that part of the time they were in 
toe Sucaiier's ro jm, and part of the time in tlie 
room a'ljoiniug? A. Yes, sir. 

Q. Well, were thu rooms prepared and made 
coiijfortaiile? A. Theie was everything brought 
in to them that they called for. 

The witness was not cross-examined. 

TESTIMONY OF MICHAEL J. HOUSTON. 

Micliael J. Houston waa called for the State 
and sworn. 

Quest ou by Mr. Miynard —State your name 
and residence. A. Micna.lJ. Houston, Kash- 
ville. 

Q. State whether you were here in July, 1866, 
and m whac capacity you were occupied ? a. 
I was in jsashvillo iu July, 1866. I was hireil 
by Ca tain Hydt. Ser^-t iiut at- Arms, to looli 
a ter some members thut were supposed to be 
here in trie city— Britt eand Jones. 

Q. Well, st^te whether you looked. A. I ex- 
amined the city a 1 aioun i. I used to get in- 
formation fevei al times that they were in such 
a place, and when 1 v* oiild go there I would be 
told ih-y had left that boat ding house and they 
could not tell me wliei e they had left for. This 
connnued on m that; w.iy for several days, a d 
at last I found out that Mr. Britt e ha'j left the 
city. Where r.e went t ' I coul i not tell. 

Q. Were you acquainted in Nashville befori ? 
A. Yes. sir; 1 came hero atout.the 19th oi Janu- 
ai y, 18^ 5 

Q. Were you employed otherwise than to 
loo'c for tro-e two gentleme ? A. I was em 
ployed here ou or abiutthe 19th day of July, 
1866, as a guajd by Gupta. n Heydt. 

Q. Were yon present here in the Capitol at 
the time of the transaction spoken of by tlie 
last witi.ess exmnined? A. 1 was present at 
the t me they came inio the Ciipitol. 1 was not 
hiire when they earae in here ou the evening of 
the I9t". Captain Heydt told me to oomL up to 
the Capitol as S' on as I got my supper, as he 
w^nt'^d me to stand guaru. I came up a litt e 
aft.r T o'clock, perhaps half past sever. I was 
told that a Sheriff bad come with a posse of 
police and tiken out Mr Williams. That is 
w^h;it the watchman to:d me after I came up 
My iusiructio-^s— 

'llie court here adjourned on account of the 
contusion created by a convention held in the 
Hall o the llou.-e of Representatives, it being 
impossible then i.o hear the witness' testi- 
mony. 



FRIDAY, MAY 17, 1867. 

The court met at tlie usual hour the Presi- 
dent in the chair and nineteen members pres- 
ent. 

After the minutes had been read, Mr. May- 
nard stated that be thought the Clerk made the 
journal too prolix, and tliat it was unnecessary 
to place on the journal simply what passed at 



the bar. The reporter might put down all that 
was said, except something manifestly tempo- 
rary in its character. 

Mr. Ewing said that he agreed with the gen- 
tleman, and thought thoie was a great deal of 
unnecessary matter presented on the minutes. 

Mr. Maynard— The suggestion is made for 
the relief of the Clerk. 

The President— I have no doubt the Clerk will 
look at it in that light and endeavor to avail 
himself of the privilege. 

The minutes were then approved. 

The President tlien announced that ho h.-id in 
his hand a communication maileilat Louisville, 
which he had not opened, but piesume I it was 
the remainder of the testimony promised by 
Maj. Gen. Geo. H. Thomas. 

It was read by the Clerk and considered as a 
part of Gen. Thomas' testimony. 

The communication is as ioliows: 

State of i ennessee, "| 

Executive Departmnt, > 
Nashville, Teun., July 17, 1865. J 
Maj. Gen Geo. If. Tliomas., U.S. A: 

GENERAL: I have the honor to furnish for 
your iufoimation the following copy of tele- 
gram : 

"Washington, D. c.,July I6th, 1865—3.50 p. m. 
"Gov. W. G Sroionhno: 

"I hope, as I have no doubt you will see, that 
the la«s passed by the last Legislatui e are 
faithlully executed, and that all illegal vote-; in 
the ap))roaching election fjr members of Con- 
gress be conducted fairly. Wheneve- it be- 
comes necessary for the execution of the Lnv 
and th protection of the ballot box, you will 
call upon Gen. Thomas for sulUcient milit ry 
force to !-ustain the civil authnrity of the state. 
I have jnst received your address, which I most 
heartily endorse. 

"[Signed,] Andrew Johnson, 

"I'rest. U. S. A." 
I have the honor to be, General. 

Respectl'ully yours. 
A. J. Fletcher, 
Secretary of State. 

Headquarters, Dep't op Cumberland, ) 
Louisville, Ky., May 17, 1867. J 
The above is a true copy of th ■ offleial copy 
of a telegram from the President of tin United 
States to Gov. W. G. Browulow under date of 
July 16th, 1865, furnished me by Hon. A. J. 
Fletcher, Secretary of State 

Geo. h. Thomas, 
Maj. Gen. U.S.A. 

TESTIMONY OF MICHAEL J. HOUSTON CON- 
TINUED. 

The testimony of Michael J. Houston Mas re- 
sumed. 

Question by Mr Maynard— You mav take up 
the course O' your narrative. A. When I came 
up, about half past seven, alter the watchman 
told me that Williams had been taken out, then 
1 received instructions to keep the doors locked 
until 6 o'cloci^ in the morning, to assist the 
watchman. I and a man named Crawford were 
both pla.'.eii on guard below in the lower hall. 
W^e noticed during that night a great many 
liersons, whom I supposed to be police, walking 
avound the building I do not know their 
names. Then we were told that we coul<i stop 
inside, in the Adjutant Generid's room. There 
was a black man here at the time, a night 
watchman; and if any one came to break into 
the Capitol, he was to call us out. Well, we did 
not see any per.«on interfering with the Capitol 
after that, until about 3 o'clock in the inorn'ng. 



62 



I was writing some letters in the Adjutant Gen- 
eral's room, and the colored man came in and 
said there was a posse ol'men outside the door, 
who wanted to get ydniittance into the Capitol. 
My jjistol was lying on the table, and I put it in- 
side my pants. I walked out to the door and saw 
a hug" crowil out ide. lasted them what they 
Avanted. Thev told methev wanted t> come in 
find get the bodies of Capt. Heydt and Mr. Mar- 
tin. I told them they could not come in until 6 
o'clock in the morning, and that I had no 
authority to open the doors. A long conversa- 
tion then ensued between us, pro and con, in 
regard to coming in. 1 here was a great deal of 
confu-ion outside. I thought they weri- excited 
a good deal. I thought they intended to bre:ik 
in iiuyhow. I turned away to go up into the 
ballot the Tlouseof Kf-presentatives to wake 
up some of the gu'trd in ti]e hall. As I turned 
away ihe man that represented himseif as the 
Sheriff, bhaw, called me back and ."^ays he, I am 
the man that was here in tlie evening; I ws.nt 
you to open these doors and let me in ; 1 want 
the bodies of Capt. Heydt and Martin. I tohi 
him, von have talkf-i; a good deal to me. and I 
have 'talked a good de^il to you. If you 
wei-e to srand there iintil next Christ- 
mas, I wouldn't open the doors for 
you One of the varty eutside said, shoot 
the damned Yankee son of a b — ch. I turned 
around to the man Crawford and told him to 
watch the doors until I woke up the guards up 
sta rs. I wear, up stairs and woky up Mr. 
Bramble and Mr. Hope. He is dead now, I be- 
lieve, sir. Then I went into the lower hall. As 
I was going down stairs I met them breaking 
in through the United States Court room, and 
coming out into the hall from the United States 
Court room, i did not say anytl ing to the party 
then. I should think there were about twelve 
in the hall at the i ime, fnd the rest were coming 
in from the United aiates Court room. I went 
into tiie Adjutant General's oflice. My hat 
was in there, and I init on my hat. As I was 
goinsT out of the door Captain Heydt hi:d called 
for this . an Crawford, as a witnes, to come 
into his room. He undertook to come in ;,nd 
one of -the posse got hold of him and ) ind of 
gave him a snove. Crawford m:'de a anoiion ;o 
draw his pistol, and I believe the man would 
have done it at the thireonly lor the concilia- 
tory way the Sherifi" spoke to him a d told 
him not to draw his pistil, and that if he 
dill tnere would be blooa shed ihcrf sure. Capt. 
Heydt spoKe to the Sherifi" and told him he 
Avarted that man in as a. witnes and lo see 
to the effects in his room, that nothing was dis- 
turbed; and Crawford was, allowe I iuthtre, in 
Capt. Heydt's room. Then anither paity came 
■up stair-;. I don't know what they did up 
stairs, hut 1 saw them bringing down Martin; 
and the other party below i>ad arrested Capt. 
Heydt. I was standing at the outer door. They 
Wanted nie to open the door. I told them no, 
that whatever they did thty would have to do 
it by force; and they biieneii the right 
hanU side window g' ing out, and took Capt. 
Heyilt and M irtln out of the Capitol. I for(;ot 
to mention tliough, during the conversation 
that we had through tlie glass door, I towi them 
that they could not get in untd six o'dock in 
the rr.orning. The sheriff said that he wanted 
the body of Captain Heydt, and that he was 
bouml to have hi- body, no matter in what 
Shane or form, that he was going to have him. 
I told h in that if he did he woi Id have to do it 
by force. He said that he did not care, th^t he 
wa^ bound to have the body of Captain Heydt 
belore he left there. 

<>. Wliere is Mr. CraAvford ? A. He is now, 
as 1 understtind, near Fort Riley, on a farm, 
one hundred and filty or one hundred and sixty 
miles from Fort Li avenworth. 

Q What was the name of the colored watch- 
man ? A I don't rightly know his name. 

Mr Smith— Wasn't it Taylor ? 



A. They used to call him that, I believe. 

Question by Mr Maynard— Is he here now ? 
A I don't know, sir. 

Q. Were you at the trial of Captain Heydt? 
A. No, sir, I Was not. That morning Captain 
Heydt gave instructions to mc and Mr. Craw- 
ford to go out to Mr. Trimble's house and make 
hi'.n acquaintrd wii h it. We got out there very 
early in the morning, before Mr. Tiiiuble was 
up. There were some colored iicople cooking 
there, and we told them Wf wanted tosveMr. 
Trimble. They woke up Mr. Trimbe He 
came down, and we made him acquainted with 
the circuu)Stan:f s oi the case. 

Q Were vou present at the court house dur- 
ing the trial o! the habeas corpus case, before 
the- e occurrcnct'S here at the Capit'd ? A. No 
sir; I was on duty in ti e city at the time, and 
could'nt take time to go down. 

Q. You spoke > esterday in your testimony, 
Mr. Houston, of seekug for Mr. Brittle and 
Mr. Jones. P^ea^e state whether the citizens 
of the town sho\veu a disposition to assist you 
ill your researches or to embarrass you. A. 
Well, I should think, sir, that they shoAved 
mo e of adisposition to embarrass me, because 
I could not get much information. (hereAvas 
■ lue of the men A\ho was Avith me at the time, 
Mr. Filzgib ons, when I went lor Mr. Brittle. 
1 left Fiizgibbons Avatchiug a house I Avas in- 
formed Mr. Brittle was in. I Avent around the 
back way and made some inquiries, and Avas 
told that he Avas i.ot there, and I came 
back again to sneak to Mr. l^itzgibbuns. I w; s 
informed the ntxt day that Mr. Brittle had 
been f een around that house. 

Q. Y'ou did not leave Na-hville under Cap- 
tain Heydt's ordeis"? A. ^o, sir. 

Q. Y'oiir duties were here in the city? A. 
Yes, sir. 

Q. Well, state Avhefber there Avas or Avas not 
ani;inifestation of excitement among a portion 
of the jieople. Sate hoAV that was. A. Wcl, 
through my traveling around the city. I heard 
s- reral groups of neisons talking, and particu • 
larly one croAvd talking about the 5th (aAalry 
and" the 16th Infuntry, that was heie at the 
time, I believe. They said that they woi.ld be 
able to clean them out anyhow, if the.. Avere 
calltd out, and that there were enouiiii citizei.s 
in Nashville 10 c'ean the 5th Cavalry and the 
Ifith U. S Infantry out. 

Q. Where was that conversation? A, Well, I 
heard that conversation down near the Square. 

Q. Were there many persons together during 
that conviTsationV A. I:shou:d thinkjthere Avese 
about seven or eight 

Q Was that said in a qu'et tone or with a 
good deal of excitement.'? A. Just about as 
Toud as I am speaking now, sir. 

Q. Did the crowd appi-obate what was said? 
A. W^ell. I should call them all chips of one 
block. J hejr Avere all just the siime thing and 
all of one purpose. 

(J. Do you know Avhether the men who came 
came up here to the Capitol at the 
t me you spi ak and arrested Captain 
Heydt Averc, or wheti er any of them had been, 
solilitrs, and if so, of Avhai, army? A. No, sir, 
I do not. I don't believe that anv of 'hem Avere 
soldiers in the Uniti-d States army. All of them 
I knew at the time Avas the Deputy bheriflf and 
Capt,.in Kver ti . The rest I knew by eyesiuht, 
but don't kuoAV their names. I believe they 
Avere nearly all night polic men at the time, 
and I am pi-ctty near certain that en the police 
of this c'ti there is no Federal soldier. If there 
is, th. re may be one and that is about all, if 
there i one. 

Q. Do you know Avhether any of them had 
bet n rel el soldier.-? No, sir, I do i.ot. 

Q. Well, is there auyotiier fact in con'^^cction 
Avith the transaction that occurs to your mind 
which you have vot stated? A. Well, sir, I don't 
think there is. 

The wimess Avas not cross examined. 



63 



TESTIMONY OF J. N. DUNNAWAY. 

Mr. J. N. Dunnaway was the next State wit- 
ness sworn by the Clerk. 

Question by Mr. Trimble— Where do you re- 
sifl'-? A. luBetltbrrl county. 

Q. Aw you a brother of the member from 
Be Ubrd? A. Yes, sir. 

Q. W. re you at Nashville in July, 1866? A. 
Well I (iont t know that I was. 

Q. Staevvhat \ ou know about tliis matter. 
A. I di)n't I now anythiug about Judge Fra- 
zier's <a?eata'l. 

Q. Yon mean about the immediate facts? A. 
Not anything- at all. 

Q I>id y lu have any conversation with ex- 
Governor Campbell on the subject or the mat- 
ter pending befor.' the Legiiiaturc? A. No, 
sir 

Q What do you know at all of the attempt 
to break HP a quorum here? A.I don't know 
of anyhinij myself, only from hearsay. 

Q. Who did you hear it from? A". I heard 
my b'Othei- speak about it. 

tj. Did you hear any leading men speak about 
it? A. No, sir. 

Q Wh 1 1 lid your brother say about it? 

Juilg • Brieu— I submit to Uie court whether 
his brofn«r is not a better witness. If his broth- 
ersjiid anything he would be more competent 
ti testify; and certainly there sliould lie some 
limit to thi- examination. His brother i> a com- 
petent witne s and could testify himself. 

Q. You said your brother was a member of 
the Legislature from Bedford, and he came 
here, and then wtnt home? A Yes, sir. 

Q. Do J on know what he quit for? A. Well, 
I have my notions. 

Q. Well from what he said? A. From what 
he said he quii. here to break up he— 

Juds-e Biien— 1 obu'ct t- that question. 

Mr. Tiimble— I insist on it. 

Judge lirien — Well, then, perhaps you had 
better let i he court decide it. 

Mr. Trimble— You can't stop me if I don't 
wish to sfop. 

Judge Brien — I perceive that. 

Mr. Trimble— Well, I don'tneedany rebuke 
fiom you. 

Question by Mr. Trimble- Mr. Dunnaway 
was a member of the Legislature? A. Yes, 
sir. 

Q. He came down here and went back irame- 
diitely? A. At the extra session I think he 
stfiyed here tM'o or thiee da>s. 

Q' 'i ou say he resigned ? A. Yes, sir, he re- 
signed. 

Q Well. I ask you what he resigned for, if 
you knf.w? A. My understand ng was that he 
resigne 1 to break up this l.e^i-^lature. 

^ir. Ewing— We obj. ct to that, "my under- 
standing as ;" we object to tliat answer 

Question by Mr. T ranble— W ell, how did von 
learn ? A. To reduce the House below a 
quorum. 

Mr. Ewing— Who said that ? A. My brother 
sai'l so. 

Question by Mr. Trimble— Your brotber said 
that? A. Yes, to reduce the House below a 
quorum? 

Q. For what pur-iose? A. I think that there 
was a certain amendment pendir.g here that 
they wanted to pass, and they wanted to de- 
feat tv-e amendment. 

Q. Did he say anvthing else to you? A. 
Wei', I am a little rusty. 1 did not jog iny mem- 
or\ at that time, and I didn't expect to be called 
upon. It is a great while ago: it was some time 
last summer. I have forgotten a'out it. 

Q Do you remember under who e advice 
your brother was acting? A. I don't know as 
I d ). 

Q. '^id you hear him say under whose advice 
he acted? A. No, sir. 

Q. Dili yon hear him mention the name of Mr. 
Cooper or Ex-Governor Campbell? A. Camp- 



bell was mentioned. I heard him say that Camp- 
bell was in the caucus advising them to do 
such a thing. 

Q. Ex-Gov. Campbell was iu the caucus, ad- 
vising them to breakup the Legislature? A 
Yes, sir. 

Q. Was he here while the caiicus was held? 
A. No. sir. 

Q. Did he say ^-ho was present in the caucus? 
A. No, sir, I do not remtmber. He might 
have mentioned their names, buti disremember 
now. 

Q Can you not recall to mind the names of 
anj' other persons that be said were at the cau- 
cus giv;ng that advice? I'id he mention any 
of their naniC'^? A. ISO, sir. 

Q. None but Mr. Campbell? A.I very dis- 
tinctly remember Mr. C anpbell. 

Q. When did you have that conversation with 
your brother? .v.. Well, sir, it was directly al- 
ter he resigned and came home. 

Q. Did you hear htm say anything aliout any 
lettir written at Washinj,-ton by the Private 
Secretary of ihe President? A.' I heard him 
sav that he received a letter from Mr. Cooper. 

Q. What did h- say was in it? A. Well, that 
Mr. Cooper eulogized him for doing so, aad glo- 
ried in his conduct for resigning. 

Q. Was that when Mr. Cooper was Private 
Secretary of the President? A. I understand 
it to tie that way. 

Q. Do know anything further upon the sub- 
ject? A. No, fir, I do not know as I tlo. 

Q. Did \our brother tell yoii that Mr. Cooper 
reprtsented the>e as the seniiments of the 
Pie^identof the United States? A. Yes, sir; 
I think he did. 

Mr. Ewing — I object. It seems to me that this 
is the way we are get! ing testimony, though I 
may be mistaken: Mr. Dunnaway heard his 
brother say that Mv. Cooper said that the Presi- 
<lant said. Now, if that is tes'imony, I will 
have to begin my primer in the law Jigan. 

31r Trimtde— He said that his brother told him 
that ex-Gov. Campbell advised him to i o what he 
did do at that caucus, and that he also received 
a letter from Mr. Cooper, tlien Private t-'ecrcta- 
ry of the Pie.-ident of the United States, eulo- 
gizing him for what he had done, and ihen he 
also said— and if any part of his testimony is 
testimony, this i« testimony— that these were 
the sentiments of the President ol' the United 
St.ites. Ii any part of it is testimony, the whole 
is. 

Mr. Ewing — There is none of it; les'^imony. 
Weoliji ct t,o the wliole oi it, but we <lon't get 
our objecti.ns entertained' i he thing seems to 
go on >oiMehow or other. We object to the 
statement of Mr. Dunnaway, the witness, in 
reg-iid lo anything his brothers id tohim. We 
object to his statement that he receivc'i a letter. 
If there is a letter irom Mr. (J( oper, that is the 
best evidence, if that were competent tesrimo- 
ny atall. Bur, then I suppose Mr. Co 'per him- 
self is a comiietent witness in regard to what 
Mr. Cooper said. I suppose Mr. Cooper might 
be intro Ixrced, and his letter introduced ; and 
then whether it would be competent for either 
oi them to state what the Presideat of the 
United States said, would be still another 
question 

Mr TrimWe— Well. 

Mr. Ewing— Submit it to the court. 

Mr. Miiynard— I will simply observe th;xt 
this is what is known to the profession; of the 
law as a part of the res gestm, that is to say, a 
pdrt of the transaction about whicii we are in- 
quiiius/. We are attempting to show that there 
was a factious and illegal eH'urt made to break 
up the Legisature and to defeat and set aside 
the Stat« Government. Mr. Duuriaway, the 
bro' her of the witness, was a member oi the 
Legislature. We have shown from the journals 
how he appears there. We bring in this wit- 
ness to piove his acts and declarations in con- 
nection with that transaction. It is what are 



64 



called verbal act?. "We want to show what 
this member of the Legislature, recusant, re- 
calcitrant, did ami said. Thi< is what is known 
in 1 iW as the res ffestm To the profession it is 
more! suggestive than any othiir expression I 
can use; to ihe non-professional mind it signi- 
fies the transaction about which we are in- 
quiring, and what is said and don; at the time 
by ttio parties engaged 

Mr. Ewing— iir. Dunnaway, I suppose, is 
charged as a member of a conspiracy to prevent 
the Legislature from sitting and passing a cer- 
tain act. which it is allesed they were conine- 
t-nctopass. Our objeclion is .lot to what Mr. 
Dunnaway himself said, but to what Mr. Dun- 
naway says that Mr. Cooper said. Mr. Cooper 
is a competent witness. 

Mr. Maynard— If tue gentleman will allow 
me, this testimony is not ac'duced Jor the pur- 
pose of establishing a lact against Mr. Cooper 
or tlie President. It may be that Mr. Cooper 
never wrote the letter, and ihattbe President 
never approved of such saitiments. It may I'C 
that this partv was making useof these rea-ons 
untruly, and dishonestly, and scan'ialously, for 
the purpose of b.icking up his conduct. What 
we wish to show is that ilie member of 
the Legislature was giving the-e reasons for 
his conuuct, and not thit the reasons were trae 
or false. That is a matter of very little conse- 
quence to this inquiry. 

Mr. Bwing— There is no proof of any con- 
nection with Judge Frazier. That is to be kept 
in mind all the time. I merely make this re- 
mark ttiat this may be kept in the mind of the 
court. But the question, Air. Trimtde, as I un- 
derstood it, was whether Mr. Cooper was not 
the Private Secretary of the Piesident, and 
from that, to infer that he was speaking thi; 
mind of the President in regard to this matter. 
It is then what Mr. Cooper said and what Mr. 
Cooper did that is to be got before the court, 
and to be us. d as evidence. 
Mr. Trimb e— If his relations were such- 
Mr. E wing— That is it. You are trying to 
prove by Mr. Dunnaway that his broth. t said 
that Mr. Cooper said that the President said 
something or other. Yonr inference is that the 
President and Mr. Cooper were partioipes crim- 
inis. 

The question was here put, anJ the court de- 
cided by a vote of 12 ayes to T noes that the an- 
swer should be received. 

Question by Mr. Trimble— Well, Mr. Dunna- 
wav. ilo you liuow anytliing fnrtiier about this 
matter? a. I do not remember anything 
further. 

Cross-Fxamination— Question by .Judge Gaut 
— Did not 3 our brother tell you that the reason 
he resigned here was because he could do no 
good? A. Well, I have heard him say that his 
motive was to reiluce the Houe below a quo- 
rum, and I have ais-o heard h'm say that he 
could do no tro d here il ir his party; that if 
they staj'ed here hey could not do any good. 
I tliink i heard him make the remark that they 
were in a minority and could not carry out any 
point by staying lie re. 

Q. Did not your brother tell you that Grov. 
' ampbell toUl him that lie ought not to resign? 
A. Yes, sir: well, I don't know how that was 
exactly, it has been so long. Campbell was for 
him boding ami resiguiUir, bolting or doing 
anything to break uiJthe Legislature. I think 
he advi>ed him either not to resign or to resign; 
I don't know how that was. 

Q. Idd r.ot he U\l you that Governor Camp- 
bell told him not to resign, that jour brother 
ought not to have resigned? Was not this .con- 
versation that you had witli youp brother after 
he had resigned? A. Yes, sir. 

Q. Well, d;dnot he tell you then and there, in 
that conver.'aiiiu. that Gov. Campbe 1 told him 
he ought not to have resigned? A. I cannot 
exactly state that. I do not know how thut was 



harlly at all, but I am satisfied of one thing— 

Q. I am not asking you about your saiisiac- 
tion. A. Yes, sir. 

Q. I am asking you to answer facts— not for 
your impression and belief, but for the facts. 
A. Yes, sir. 

Q. Didn't your brother tell you that Gov. 
Campbell s iw him and told him that he had 
done wrong in resigning; that he ought not to 
have resigned? A. Well, I think he did, that he 
had done i^rom?- or he had done right. Now, I 
don't know which it was, but I know he bai<i 
that Gov. Campbell was there doing all he 
could to get tlie members to bolt or resign, one 
or the other. That was tlie thing intended, to 
break up the Liaislature; and I might have 
unlerst 10 I 'uv brother to say atthitiime — ic 
has been a good wliile ago — that Campbell ad- 
vised hiin to do one or the otiier, and the point 
was on the resigning matter. You see, my 
brother at the last session boited, or was called 
a bolter, and he was elected again, and he had 
promised the people that he would not bolt, as 
I understood it, and when the squab ide got up 
he could 'Ot b It, cottld not getaway, but he 
could resign, and the conversation that he had 
with Cjmpbell was about resigning or about 
bolting, I don't know how that was. 

Q Well, I will ask you the question again; 
perhaps it wdl come to your recollection. 
Diiln't your brother tell you that after he had 
resigned, Gov (.'ampbell came to his room and 
told him he otight not to have resigned? A. It 
might have been that way. 

Q. Well, when you talk abottt a caucus, isn't 
it the fact that your brother, instead of saying 
that there was a caucus, that after he had senc 
in his resignation. Gov. Campb.'U came to his 
room anfl toltl him tliat lie had duio wrong, 
and that he ought wo;! to h ive resig ed ? A. 
Positively, I can't state exactly how that was; 
I didn't charge my memory. 

Q. Weli, did you heir your brother speak of 
any other caucus? A. Yes: I think the Con- 
servative party wis generally at that room, 
I don't know whether it was at his ro.jni or 
not. 

Q. State whose room it was. A. I think they 
had a meeting to consnlt about thi^ mat er. 

Q. Well, now, who told y.iu they had a meet- 
ing? A. My brother told me they had a meet- 
ing. 

ij. Who did he say was at the meeting? A. I 
don't remember. 

(} Did he speak of any one being at the meet- 
ing? A. Gov. Campbell was mentioned. 

Q. Did he >peak of any o'her person coming 
to his room? A I am satisfie I of one faot,tha : 
there were others there, but I don't rememl)er 
their names, wheh. r he .ailed their names or 
not. I am satisfied from the conversa ion that 
there were others there. 

Q. Well, where did your brother tell you 
there was a meeting at? A. it was tomewhere 
in the e.ty here, in some room. 

Q Did he tell you nothing about who 
^•a> present; didn't he give thei names? A. 
He might have done it. I suppose there was no 
Kadical at it. 

(J Well, how do you know? A. No, I 
don't know that 

(J. You speak about a letter from Mr. Cooper. 
Did your br.ther tell you that he had got a 
letter fro'n Mr. Cooper before lie re igned? A. 
No. sir, it was after his re-ignation. i am sat- 
isfie I of that, for he had resigned and ha<l eome 
home and h .d come to my house. Hetokl me he 
had resigned, and he got a lelt e that evening. 
Hetokl me on his way to my house. I didn't 
see the letter; he just only mentioned that Mr. 
Cooper, as I stated 11 while ago, eulogized him 
and praise I him no fordiing it. 

Q. Weli, I ask you this qnest'on: Did yonr 
brother ever mimate to you th it he hid re- 
-igueil hv the advice or direction of Mr. Cooper, 
or any person else? A. No, sir, I don'i, know 



65 



as he told mc that he was advi? ed to do so, that 
is, by auy certain one. I am satisfied that Mr. 
Cooper — i never heard huii tay that Mr. (Jnoper 
advised him to ilo so The whole sum and sub- 
stance of it is thftt it was a general understaud- 
ins;-. 

Q. Well, how do you know that ? A. Well, T 
don't know. You may say I don't kuow posi- 
tively. 

Q "That is just your opinion ? A. '1 hat is just 
my oi'mion, from what 1 could gather up from 
cjuversation. 

Re-direct Examination. — Q. Well, that ciucus 
you tpeaii of was a caucus of Conservatives ? 
A. I umterstood it to be so. 

Q. Can you give any name except those of 
Gov. Campb-11 and your brother? A. Mo, sir. 

Q. Did you ascertain how often they met? 
A. No, Sir. 

TESTIMONY O? ABBAM SMITH. 

Abram Smith (colored) was sworn for the 
State. 

Question by Mr Maynard— Your name and 
residence? A. Abrdm Smith; residence, Nasn- 
ville. 

Q. AVhere were you, and how occupied, in 
July, 1866 ? A. 1 was porccr here at thy Capitol 
at that time. 

Q Wereyou p'csent at the time a party of 
men came to the Capiiol and arrested Captain 
Heydt, ^nd took away Mr. Williams and Mr. 
Martin? A I was present when tl?t;y took 
away Mr. Willia^is aud Mr. Murtm. I was not 
present when they arrested Capo, lieydt; 1 was 
down town. 

Q. State all that occurred. Just go on and 
give us the account. A. Tlu doors were lo-ked 
and the Sh-riff and the deputy Sbeiifi" came up 
to gee Mr. Williams aud Mr. "Martin out; aud 
the watchman at the Capitol would not admit 
them at first, and thev thi eatened to break oper\ 
the W'udows. Mr. Wines, one oi the members 
of the Legislature, vras inside and wanted to go 
ont aud several others were in and wanted to 
go out. The doors were opened for them to go 
out, a id the Sherifl's broke right in and oam^ 
up and got3Ir. Williams and Mr. Martin. 

Q. What time was that? A. It was about 
hall jiasc six iu the evening. ' 

Q. Do you know whether they got Mr. Mai- 
tin at that tim ;? A. Well, they did not take 
Mr. Martin on', because he was asle ;p, and they 
did not wake him up. They took Mr. Williams 
out though, and took him down town. 

Q. Where did you say 3^ou were at the time 
they arrestc'! Capt. Heydt? I was down town 
suni'where that night. It was done early in 
the morninc:. 

Q. State if you saw any evidences about the 
Capitol of breakluif opea the building. A. 
Wub, the window of the Federal Courc was 
broken open, and the door leading into the 
main hall was pried open. 

Q. Were they clobed at night? A. Tes, sir, 
they were ciosed at night. 

Q. Did you know the persons that came up 
ami took Mr. Willi ims ? A. It was Mr. Shaw, 
I be'iuve, and Mr. Davidson. There were lour 
Of them, and these were the only two I knew. 

Q. Wei e you about the House of Representa- 
tives during that session ? A. Yes, sir. 

Q. Well, do you knoiv anythinu'- anout an at- 
tempt being made to break up the House by 
keeping away a quorum of the members ? A. 
I dil hear such talk up there in the lobby once 
in a while 

Q. Who did you hear it from? A. Well, 1 
heard it from two or three. I did not take par- 
ticular notice who th y were. 

Q. Were they members of the House or out- 
siders ? A- I think tliey were outsiders. 

Q. Persons living here in the city? A. Yes, 
sir, I think they were. 

t7. Can you mention anv names? A. No, sir. 
I never took particulnr notice ; but I recollect 



of hearing them say thev were going to try to 
prevent a quorum, and they made remarks 
about it. 

Q. Did you hear that on more occasions than 
one? A. Well, I heard it only about twice or 
three times. 

Q Do you know whether persons not con- 
nected with the Legislature were up there iu 
cviisultatioii with any of the members ? A. 
Well, they were a good many times out in the 
hall. A good many people were m consulta- 
tion, but I did not know the people. 

Q. Were you about to«n a good deal? A. 
Yes, sir, I was about town a good deal. 

Q. Were there many strangers pres 'nt at that 
time, persons that did not belong in the city? 
A. I don't think there were, sir. 

Q Do you know of any memhf rs keeping out 
of the way to defeat a quorum? A. Yes, sir, I 
know of Mr. Jones and Mr. Martin. 

Q. Whioti Jones was that? A Mr. Jones, of 
Greene. 

tj. Mr. Jones, of Greene ? A. Yps, sir. 

Q. Do you ki.ow where he went? A No, sir, 
I think "he was here in town; I don't know 
where he went to, though 

Q. Was he subsequently, or at any time, ar- 
rested and brought into the House? A. No, 
sir, 1 don't think he was. I think he came iu 
aftir they had a quorum and passed that amend- 
ment. 

Q. He then came in voluntarily? Yes, sir. 

The wituess was not cross-examined. 

TESTIMONY OF WADE HICKMAN. 

Wade Hickman, colored, was then called as a 
witness on the part of the State, and sworn. 

Question by Mr. Maynard — Your name and 
residence? A. Wade Hickman, Nashville, 
Tenn. 

Q. Where were you in July, 1866? A. I was 
here at the Capitol, sir, a porter of the Sen- 
ate. 

Q. If you kuow anything, state what you 
know of an attempt made to breik up the Leg- 
islature by dcleating a quorum. A. We 1, 1 
know very well that I was up at the Cap.tol 
here, Intiie Senate chamber. After I got done 
cleaning up of an evening I started out. The 
doors Were clo=eiandI could not get out. I 
asked whv. T hey s lid that the Sheriff was out 
there to arrest the members that they had in 
prison aud thev would not let me out. I went 
down through the coUnr and got out that way, 
and I think it wtis Mr. McSUt ee who said open 
the doors aud let i;h('rii iu, that there was no law 
to keep them out. That was Mr. Shaw and Mr. 
Davi't-o 1. After they opened the doors ant! let 
them in I came up stairs with them. They 
Went i .to the room and took Mr. Williams out, 
but left Mr. Martin lying uiwu the floor. He 
was unable to go. The Ibl owing night, I 
think, they .came back and took :vtr. Martin and 
Captain Hevdt. 1 know very well I was not 
here at the time. The next morning Smith 
took me down and showed me how they got in, 
bv opening the court ro"m aud prying the hasp 
off the don-, and taking Capt-\in lieydt and Mr. 
Martin out. He showed me where it was 
done. I didn't see it, and I only saw where 
they g' t in. . 

Q. Were vou here when they came in and 
took Capt. Hevdt out? A. No, sir. 

Q. What time did they come and get Mr. 
Williams? A. It was between six and seven 
o'clock. 

Q. Well, it was before sundown, then? A. 

No, sir; as well as 1 recollect, the sun was 

tiown. , . .L, ^ 

Q. You say Mr. Martin was aslpep at that 

time of day? A. Yes, sir ; he was asleep at that 

time of day. . , , , , 

Q. Was he in ill health? A. No, sir; he looked 

to be very healthy. 

Q. Why did not the officers that went after 



66 



him wake liim up and take him away? A. I 
tried to wake him up, but I did not believe I 
could wake him up. 

Q. Deep sleep had fallen upon him? A. Yes. 
sir; there ■,\as a demijohu in the room, but I 
do not know whether that put him to sleep or 
not. 

Q. Had you been about the Legislature before 
that time, while the House was trying to get a 
quorum of • embers there? A. Yes, sir. 

Q. Well, do you know whether there was any 
efi'ort made lo prevent it? A. I do not, sir 

Q. Didyou^ee any member getting out of 
the way, iseeping out of the way? A. Yes, sir. 
I recollect some of the members 'old me they 
would not have a quorum, and I asked 'hem 
why. 1 hey said it was because they would 
not be there; but I don't recollect who thev 
wereexacily. One that I know wa^ Mr. WiJ- 
liams. He told me he would not be found next 
day, and sure enough he was not I'ound: and 
Jones, of Ureene, told me that he would be out 
of the way, and he was out of the .vay. 

Q. Do Tou know whether he lefc" the city? 
A. No, sir. ] don't know, but I heard that he 
did not leave ihe city. I don't know that to be 
a fact, though. 

Q. Dill they say whether any one was opera- 
ting with tliem or not? A. 3Sfo, sir, they did 
not say that to me. 

Q. Do you know whether any caucuses were 
held here in the city looking to that same eud? 
A. No, sir, I do not. 

Q. Do you know anything' about a caucus 
being held at the Commercial Hotel? A. No, 
sir. 

There was no cross-examination. 

TESTIMONY OF BUCK LEWIS. 

Buck Lewis, colored, was next called as a wit- 
ness for the prosecution, and sworu. 

Question by Mr. Maynard--Your name and 
residence? A. Buck. Lewis, county of David- 
son. 

Q. Where were you and how employed in 
July. 18G6? A. In the House of Representa- 
tives, sir. 

Q. In what capacity were you acting? A. 
As porter of 'he House. 

Q. From the beginning of the session? A. 
Yes, sir. 

Q. Were you there pretty regularly during 
the sessions of the House? A Yes, ^ir. 

Q. Do you know whether there was a good 
deal of difficulty in getting a quorum of mem- 
bers and whether any efforts were made to de- 
feat it? A.I d'ln't know whether there were 
any efforts maile to deleat it or no*;, sir. I know 
there was a difficulty about getting members 
preseut. 

Q. Do you know whe' her any members went 
aAvay afcer having attended. A. Yes, sir, a 
good many of them Avent away. 

Q. Who were they? A- Well, I can't think of 
all their names now. There was Mr. Marable 
who went away and Mr. WiUians, and Mr. 
Martin, and a good many othei-s. I can't think 
ot all their names now. 

Q. Did they all return? A. No. sir, I did not 
see any of them return, excepting Mr. Wil- 
liams; and Mr. Mariiuwas brought in by Mr. 
Heydt, I believe. 

Q. Did any of them re' urn voluntarily? A 
If they did, 1 don't remember it. 1 don't think 
they did. 

Q. Do you know why they went away? A. 
No, sir, I do not. 

Q. Did yuu hear any of them assign any 
reasons? A. No, sir, I did not 

Q. Did you hear any of them talk on the sub- 
ject of a quorum? A. I heard them say ihcy 
did not think there would be a quorum, ana 
that was about all. I was coming up from the 
depot and met Mr. Dunnaway going down to 
the train with a little carpet bag in his hand. I 
told him the aoorlseeper was ordered to hant 



him up, and he said he was going homo. That 
is about all. 1 met him on Church street. 

Q. When was that? A. That was two or 
three days after the Hou^e ordered the members 
to be arrested, or a little before, I don't remem- 
ber which. I remember meeting him, and that 
was all. I met him on Church street; he sa d 
he was going h'lme. L'c did not say whv he was 
going home, but that he w as going home That 
was ail. 

Q. Were you around a*- the members' rooms 
much? A. No, sir, 1 was not. 

Q. Do you know anything about any cau- 
cuses being held in the cty? A. Mo., sir, I do 
not. 

y. Did you see any persons about the Hon e 
—outsiders not co nected with it ? A. What, 
coming in the House here ? 

Q. Yes ? A. I saw Mr. Watterson, the editor 
of the Banner, come in an l talic to Mr. Wil- 
liams and Mr. Martin in the Speaker's room 
there. 

Q. Did you S' e other leading gentlemen who 
were understood to te opposed to the action of 
the Legislature? A. Mr. Colya--, I saw him. 

Q Who is Mr. Colyar? A. I think be was a 
lawyer. He lives up aijout Winchester S'-me- 
where, but I thiuk he is practicing law here 
now. 

Q. Well, do you know how he stood upon the 
Question ? A. I heard him say to them that he 
thought they had done right, and tha. they 
had been iinpo-ed upon long enough. 

Q. Do you know whether he had been a 
member of of the rebel Congress at Richmond or 
not? A. No sir, I do not know about th^it. 

t^. Who did he ted this, that he thought they 
had done right? A. He told Mr. Wildams and 
Mr. Martin that while they were imprisoned. 

Q. In what respect did he say they had done 
right? A. I do not know about that. 

Q. In what respect did he say that they had 
been imposed upon long enough? A. I do not 
know, sir, I just heard the remark. Mr. • 
Watterson, the eiiitor of the Banner, toid them 
nearly about the same thinir. 

Q. ilr. Watterson? A. Yes, sir. 

Q. Were you here at the time those men were 
taken out of the custody of the Sergeant-at- 
Arms and when Captain Heydt was i<rr(-sted? 
A, No, sir. I was at home. They came there at 4 
o'clock in the morning hunting for Captain 
Heydt at my house. I told them th:it he was 
not there, and had not been there; they were 
looking lor him and he was not there, and they 
came on to the Capitol, I suppose. In the morn- 
ing I saw Captaiu Heydt a prisoner at the Com- 
mercial Hotel. 

Q. You were keeping house, and they came 
to your house? A. Yes, sir, they came there 
about four o'clock in the morning, hunting for 
Captain Hevdt. 

Q. I do not understand you to say that they 
broke into your house? A. No, sir. 

Q. In whoso custody was Capt. Heydt when 
j'ou saw him at the Commercial Hotel? A. Mr. 
Alexander wasoneofthem. There were three or 
four others there that I don't recollect. I re- 
membi-r Mr. Alexander very well. 

Q. Do you know whether any of the men in 
charge were soldiers, and if so, in what army? 
A. Mr. Alexander had been a Quartermaster 
in the Confederate army. Mr. Everett was also 
a soldier in the Confederate army. He came up 
here. 

Q. Did you follow on to see what was done 
with Capt. Heydt? A. No, sir, I did not I 
didn't know they had him until I saw him up 
stairs at the Commercial Hotel. 

Q. Were you pres. nt at the court house at the 
time his case came on? A. No, sir, I did not go 
there at all. 

Q. Were you in the court hotxse when they 
were trying the habeas corpus case? A. Yes, 
sir. 
Q. All the tim e? A. No, sir, not all the time. 



67 



Q. What was jroin^ on when you were there? 
A. Judge Trimble anrl Judge Bricn were argu- 
ing it, and I went in there to hear them and 
came out. 

A. Did you hear their arguments in full? A. 
No. sir. 

Q. Were there many persons present? A. 
Yes, sir. 

Q. Was there much excitement'? Well, it 
seenii d to mc there Avas a good deal of excite- 
ment. 

Q. Was there any manifestation of applause? 
A. I dirt uot Tiotice whether thpre was any or 
not: if there was, 1 have forgotten it. 

Q. Were you there when ihe case was finally 
decided? A. No. sir; I was not there 

Q. Were you at the court house at ihe time 
Judge Fr'z'ier left the bench? A. No, sir. 

Q. Please state if any intimation was made to 
you before theLcgislat re met that there would 
be no quorum, or a purpose that there should be 
none. A. There was not any made here lu the 
city. 

Q. Well, any made anywhere? A. Well, I went 
on to Washington with Maj. Lewis, and I went 
tip to the President's house, and was there two 
or three days. I told him I was going to leave 
him in a few days, that the Governor hail called 
the Legislature, und that I was empioyrd in ihe 
House ol JKepresentatives. The Prendent said 
to me that the Governor had a damned sight of 
use for the Legislature, and that there would 
be no quorum this time. That was betore I left 
Washington to come on to wait on the Legisla- 
ture. 

Q. How long was that before? A. The Gov- 
ernor had called the Legislature then. I was 
at Washington with MaJ. Lewis. 

Q. You weie preparing to corae home to at- 
tend to your duties as porter of the House? A. 
Yes, sir. He left for the c mntry a^ Mr. Blar',«, 
and told Mr Cooper if I wanted any money to 
give it to me, and Mr. Cooper gave nie foity dol- 
lars. 1 told Mr. Cooper I wxs going the next 
day. He gave me forty dollars to come home 
with. Mr. » ooper said the same thing— that 
there would be no quorum. I told some of the 
members about it when I came here, tnat the 
Pres deut had said that he did uot ihiuk there 
would be any quorum 

Q. Did you come directly home? A. Yes, sir. 
I came right straight on tbiough. 

Q. VYh:At time did you get home? A. About 
three days befoie the Legisla lire met, and I 
told some of thrf members, not thinking any 
harm, about what the President had said. 

Cross -KvaTninaiion.—Qnebtion by Mr.Ewing — 
You say you saw Mr. Colyar in the Capitol? 
A. Yes, sir, I saw him in Mr. Martin's room. 

Q. In the evening? A. Yes, i-ir. 

(.). Did you see him before that time in the 
Capitol? A. No. sir. 

Q. iliey were ariested there and in the Com- 
mittee room? A. Yes, sir. 

Q. Do you know that Mr. Colyar was counsel 
for Mr. Williams? A. No, sir, I don't think he 
was ; I don't think they had any counsel at 
all. 

*.). Was he afterwards counsel for them in the 
habeas corpus case? Did you see him coming 
there as one of the lawyers? A. Yes, sir, I re- 
member that. I had forgotten it. I saw him 
coming as one of the counsel. 

Q. Do you know whether h« was there get- 
ting the facts Irom them in order to argue their 
petition before the Judge? A. No, sir, I do not. 
He did not say anything abiut ir. 

Q. Well, you did uot hearthe whole conver- 
sation? A. I just simply heard him say ihat 
they had done right, and that they haa been 
impos d uiion long enough 

Q. You don't know whether he was sent for 
by them? A. I don't belie vi^ they sent for 
them. I don't think they sent for any person. 

Q. Well, do you know "anything about that? 
A. No, sir. 



Q. Tou know that ho was up there and that 
he was counsel for them afterwards ? A. Yes, 
sir. 

Q. Was not Watterson thereat the same time 
that Colyar was ? A. Yes, sir. 

Q. Was he there at any other time? A. No, 
sir, I don't think he was. 

Q. How did you happen to be in the presence 
of the President on the occasion vou speak of ? 
A. I made it a lule always to go there to his 
house when I went there, and I always staid 
there when I Avent to Washington. 

Q To WDom was the President addressing 
himself? A. To nobody but myself. He was 
an old acqua ntance, and we were talking a 
long while. 

Q. Where did you see Mr. Cooper? A. I saw 
him as Private Secretary. 

Q. Was he there present? A. Yes, sir. 

Q. What did he sny? A. He said I need not 
hurry to go home. He gave me forty dollars, that 
Mr. Lewis told him to let me have, an I s lid that 
he did LOt thmk there would be any quorum. 

Q. He did not think there would bo any quo- 
rum ? A. No, tir. 

He-direct Examination. — Question by Mr. 
Maynard — I want to »oe if I understand your 
tistimony corroctly. Were the Presifient and 
Mr. Cooper together at the time this was said? 
A. No, sir, Mr. Cooper was in the Secretary's 
office. There was no one present at the tme I 
Mas talking. I told some of the members of 
this, but I did not think there was any harm in 
it. I also told secretary Fleteher. 

TESTIMONY OF ED. H. GO WEN. 

Question by Mr. Maynard--Your name and 
residenop? A. Edward H. G')won is my nara-e. 
I live within six or seven miles of this place. 

Q A\ hat are youi- relations witti the Legisla- 
ture of Tennessee? A. I was Clerk of the House 
of Representatives, 

Q. Were you present acting in fiat capacity 
at tiie extraordini.ry session in July, ]8Cd? A. 
Yes, sir. 

Q. State whether there was a difficulty in ob- 
taining a quorum in the House of Re^jrosen ta,- 
lives, anda manifest eflort to defeat that olj- 
ject? State all that you know in legard to that 
matter? A. Th^re wa>i an eflort to secure a 
quorum in the House of Reijre^entatives at that 
time. But there was also in effort on rhepart of 
some of the members of the House of Reiu'esen- 
tatives to prevent them rom getting a quorum. 

Q. What was done? A. They vacated their 
seat-!, I don't know what t'leir purpose was. I 
don't know what they could have in view when 
they did this. 

Q. Did you hear any conversation with any 
of the members, or among any of the member.-, 
e.vpressing apurp.jse to prevent a quorum? A. 
No, sir, I don't lemember that I ever heard of 
any. 

Q. Were there not peron« not members of the 
House associating with and counseling with 
those gentlemen who vacated their seats? A. 
Not t) my knowledge, more than that there 
were men in the House frequently, hut I don't 
know that there were any counseling with 
those meiubers who vacated their seats. 

Q Do you know whether any caucuses were 
held looking to that object? A. No. sir. 

Q. In the "^Capitol or in the city? A. None 
to my knowledge. 

Q. How many members left their seats alter 
having been here? A. I dont know distinctly; 
but there were a good manv. 

Q. Did any of tlieir* return voluntarily? A. 
Well, some of thtim returned. A few of them 
returned, but I don't know whether any of them 
returned voluntarily 01- not; only one or two, 
perhaps, returned voluntarily. 

Q. Who were thos? A. Itnink Mr. Jones, of 
Greene, returned voluntarily, and he is the 
Oidy one I r-member now. 

Q. What do you know of the arrest of Mr. 



68 



■Williams and Mr. Martin? A. 'Wei!, sir, they 
were anesteii \«y Captain Heydt's ollieials, wlib 
were men acting under his orders as Sergeant- 
at-Arms of the House. 

Q. Where were they kept in ciistody? A 
They were kept in the Committee room. 

Q. State whether anj' more restraint wa; or 
was not exercised npou them than wmld keep 
them from escaping? A. Tiiat was ail, it seem- 
ed to me. 

Q. Were they supplied with articles ofoom- 
fort, eat ng aud drinking and sleeping? A 
Well, I believe they were supplifd by a i'riend, 
simply. They were not si pplied by Capt. 
Hevdc, or by orrler of the House that I know of. 
But I think some friend carried them some 
blanktts, and that their meals were sent to 
them. 

Q. Do you know anything about their being 
taken out ot the custody of the Sr rgeant-at- 
Arms? A. No, sir, I know notlaing about taat 
circumstance. 

Q. Were j on present at the time of the trial 
of the habeas cornus case? A I was present 
about an hour one day only, perhaps a little 
more. 

Q. What was going on in the court at the 
time you were present? A. The counsel were 
speaking at the time I heard tli m. 

Q. Do yciu recollect who was speaking? A. 
I heard Mr. Co'.yar speaking I think it was 
Mr. Colyar. 

Q. What Colyar was that? A. Perhaps not 
•Colyar. It was another case I was thinking 
about. I heard p^rt of Mr. Brien's speech in 
the habeas corpus ca^e, and that :s all I hoard. 
I did not hear tiiC counsel for the State ao all. 

Q. Were there a good many per-ons present ? 
A. Yes, sir, thfre wereagooLl many. 

Q. State whetlier there was or was not much 
excitement. A. No, sir, I ilid not see any ex 
traordlnary exciiement. It seemed to be rath- 
er an interestiag trial 'or the people. 

Q. Was 1 here any expression of applause or 
approbation ? A. No, sir, i.ot while I was 
fcliere. 

Q. Were yoxx present when the decision was 
finally ma e ? A. No, sir. 

Oross-jEjsamination. — Question by Mr. Ew- 
iug— Mr. G^wen, is it not very common for the 
loiiby to be occupied by various persons when 
oidinary legislation is gomg on? A. Yes, sir. 

Q. Js not the lobby very irequently f:dl upon 
any ordinary exciting questi-m ? A. Well, there 
was, upon i-omequestiuns, a good many in there. 
Generally there were not a gnod many present, 
but upon some few questions whib- the Legisla- 
ture was in sessi n tne lobby was full. 

Q. Is it a very cuinmon thing for members of 
•the Legislature to be talking lo men wiio come 
in from the lobby ? A. It s^'emed to be very 
common among their friends ; they came in and 
talked with them. 

Q. Yes, sir; but I mean in ord'nary times 
don't persons come inside the bar very fre- 
quently by invitation, or otherwise, and talk 
with the members ? A. Well, they would come 
in there very tolerably often, if they were on 
business, I suppose, or to see some friend who 
was a member of the House, and they would 
come iu without any iuvit .tion, to his scat; at 
least I heiird no invitation given. But ordina- 
rily and generally I think that those who were 
unacquainted, aiid without business, did not 
come inside the liar of the House at a 1. 

Q. Dill you see any extraordinary amount of 
tainting with these members of the Legislature 
about the time an attemiJtiwas made to break 
up the House? A. No, sir. 

Q. > oil Ave re in tne House pi etty generally 
as a clerk ? A. Yes, sir, I was ttieremLSt of the 
time. 

MB. GOWEN RECALLED. 

Question by Mr. Ewing— Was Judg- Frazier 
in the House at the time ? A. Upon that ques- 



tion I cannot be positive. I saw his brother 
sometimes in the bar of the House. 

Q. His brother was present, was he not ? A. 
I did not see the Judcre, I think. 

Question by Mr. Maynard— You don't recol- 
lect whether you saw the Judge iu the House or 
not ? A. No, sir. 

Question by Mr. East-Do you know where 
Judge Frazier lived at that time ? A. Yes, sir. 

Q. Where did he live ? A. He lived in the 
country about six miles from here. 

Question by Mr. Maynard— Did he come to 
town pretty regularly ? A. Well, sir, I did not 
stay in the < ountry myself. My understanding 
was that he came to town pretty regularly 
while his court was in session hire. 

Question by Mr. Maynard— Do you know 
whom he associated with here ? A. No, sir. 

Q. Did you ever meet him in town ? A. I 
very seldom saw him. 

TESTIMONY OP CAPT. WM. HEYDT. 

Question by Mr. Maynard— Your name and 
residence? A. William Ileydt; Nashville, 
Tennessee. 

Q. Were you in Nashville in July, 1866? if 
so, how were you employed, and in what ca- 
pacity'i; A. Yes. sir, 1 was iiiNasavilie here, 
and I was employed as Sergeant-at-Arms in 
the House of Representatives at that time. 

Q. Please state whether as t^ergeant-at-Arms 
you had a warrant placed in your hands by the 
Speaker of the House of Kepresentatives lor 
the purpose of arrestiu? certain members of 
the House. A. I had a warrant from Speaker 
Heislsell in his own handwriting to arrest cer- 
tain members belonging to the House. 

Q Well, stdte whether you proceeded to ex- 
ecute it, and what steps you took to execute it. 
A. A resolution was pass.d by the House of 
Kepresentatives that I should engnge assist- 
ants to help me to arrtst atjsent members, and 
I engaged assistants and sent them out in every 
direction. 

Q How many assistants did you emptor? A. 
Sixteen or eighteen; I 'Jon't know particularly. 

Q. Did you make any application for milita- 
ry assistance, and if so, why? A. Yes, sir. I 
had a repoit from my assistants that thi'y had 
trouble to bring Mr. Marable here. They said 
that men h id pistols and revolvers, and they 
reporte t that ih.y could do no hing with Mr. 
Murable. For that reason I sent an application 
to Ceneral Thomas for a squad of soMiers to 
he'p mc to arre-t the men, and b ing them 
here. 

Q. Well, did you obtain the soldiers? A. No. 
I leirned from General Thomas that he had in- 
structions from Washington not to intertere 
with the civil State Goveiumei tin Nashville. 

Q. How many persous meniioned iu the 
Spvaker s warrant did you succeed in arrest- 
ing, and having brought here ? A. I expect 
that there were ten or twelve member^. 

Q. Did you arrest that many ? Whowerear- 
rested ? A. Martin and Williams. 

Q. What did you do with thun after you had 
arrested them ? A. I took them up stairs iu 
tie House of Representatives in one of the com- 
mittee rooms — No. 2. 

Q Did you make provision for their comfort 
and care ? A. Yes, sir. They had brt akfa t, 
dinner and supper, lights, cigars, beer, whisky, 
baniiLts and sofas. 

Q. At whose expense were they furnished? 
A Well, at lii'st at my own expense, and after 
awhile at the expei se of the .'?tate. 

Q How iong were they iu your custody? A. 
Three, or four, or live day». 

Q. Did you receive any instructions from the 
Speedier in regard to t.'ie manner of keeping 
thein? A. Yes, I had instructions ftv m the 
Speaker to puttbesemenint le House of Repre- 
sentatives. 

Q. i>i(i you inform the Speaker from time to 
time how you had succeeded in executing his 



69 



■n-arrant ? A. Yes, every day; I got my reports 
from my assistants every time in writing. 

Q. Was the writ of habeas corpus served upon 
you ? A. Yes, sir. it Avas. 

Q. At whose instance, and at what lime? A. 
In thi> m 'rninfr; I n^ported this to the Speaker. 

Q. I ask you who got out the writ for these 
men wh(j wtre in your custody? A. I don't 
know. 

Q. Well. Avho were you commanded to bring 
U]>? A. Martin ;Tid Williams 

Q Do you recollect which first? A. I think 
Williams fi'St 

Q. What time was this paper made tnowa to 
you? A. lu the nfttrnoon. 

Q What ('ay of the month? A. In July, 
about the lOth or 12th; I don't know, particu- 
larly. 

Q What do you say yoii did when tbe paper 
was maile known to you? A. I reported it to 
Speaker Heiskell. 

Q. What did he tell you? A. The members 
of the House had a meeting, and thi'y sent a 
statement in regard to th's habeas corpus. 

Q. Did you ake it there? A. Yes, sir, for 
myse f, beiore I was sworn in. 

Q. Were there coimsel there on behalf of the 
State to a-sist you? Yes, sir; Judge Harrison 

Q. What instructions tiid the Speaker give 
you with regard lo Mr. Williams and Mi . Mar- 
tin — to take them m or to keep them? A. To 
keep them in the House of Kepresentatives. 

Q. Well, state whether you acted throughout 
under the orders of the House and the Si eaUer? 
A. Yes, sir, under the orders of the Speaker and 
the House. 

Q. Please inform us hoM' these gentlemen, Mr. 
Williams and Mr. Martin, got out ol'your cus- 
tody? A A force of po ice and a Sheriff came 
in the evening and took Mr. Williams ont, and 
inthemorniu , hetwee three and our o'clock, 
they took Mr. Marti a and myself. I counted 
bcween twenty-five and twenty-nine. Every 
man had a pistol or a revolver. 

Q. I understand you to say that you were ar- 
rested by this party? A. ^ es, sir, i was. 

Q, Well, please state the circum-tan' es of 
vour arrest, when it occurred, and the time of 
(lay or night, and the manner, etc? 
A. I expect it was the nineteenth or 
twentieth of July, in the morning between 
three and lour o'clock, when 1 wus in my bed 
and asleep. These men came int > my room 
and said, come up, come up. come up. Well, I 
looked around and saw this whole party ot 
men about me in my room, and I said, what 
do you want in my room? have you a right to 
come here at this time of day in my room? 
have you a right to come here and arrest me? 
I protest aiiainst it. I am an oilicer of the 
House. Well, they saul they didn't care, and 
they took me out of my room. I counted a 
good many men who had ccme to arrest me. I 
counted twenty-nine at the door They tfok 
me along Cedar street to the Commeicial Hotel, 
and took me uj) stairs in the second story and 
locked me up in a room. I was watched by 
two p;>licenien inside of the room. About sev- 
en o'clock they tootime down and ordered me 
to get my breakfast. There were two police- 
men, one on each side of me. After breakiast 
they took me back into the room. About hali- 
past eight o'clock they took me ('own, and alter 
wailing at the Commercial Hotei, at the door, 
till about nine o'clock, tLey took me to the 
Criminal Court roi m. 

Q. Web, what did they do with you %vhen 
they got you tha-e ? A. Well. I had lo wail 
about a half an hour, and after awhi'e Judge 
Frazier took the b-nci as Judge. Judge Gaut 
was counsel for me. 

Q. We 1, -what happened then? A. Well, 
Judge Gaut d' fended me, and after awhile 
Judge Frazier fined me ten doll.'irs cost. 

Q. Well, what did you do then? A. Well, 
Judge Frazier took me down in the Clerk's 



room. I forget my pocket book in the morning, 
in the hurrj*. I fouh 1 a iriend, and sent him to 
borrow ten do' lars lor me. He came back, and 
I paid the ten dollars down in the Clerk's room; 
then I was discharged. 

Q What f'id you say, Captain Heydt, about 
your pocki t book V A. 1 forgot my pocket book 
in the morniug in my room. I think 1 left my 
pocket liook on the tble, and the next morning 
jny pocket book was gone. I had orty or for- 
ty-five dollars in ii. Xo one had been in the 
room except the police. 

Q. Have you ever seen it since, or ever found 
it? A >o. 

Q. You speak of Judge Gaut as yoiir counsel. 
Did you employ him, or was he employed for 
you? A. ho. he came to me. I did not apply 
to Judge Gaut to deiend me. 

Q. Of these several gentlemen thiit you were 
orderi d by the Speaker's wai mnt t • arrest and 
bring before the House, do you knoyy whether 
any of them remained in the city, or had they 
all" left ? A. We had a warrant to arrest these 
men I expect that there we>e three or lour 
members here in the citv. I lof'ked for them 
myself in different boarding hcu^es. They 
wei'e changing their boarding houses nearly 
every day. 1 know men who rhanaed three or 
four times in one day. One of the meuibers who 
w;:S staying on Cedar street, moved to Edge- 
fl'eld, three miles below the river, and then two 
miles below the waterworks 

Q. Do you know whether there was any ef- 
fort made on the part ol -iny memners, or per- 
sons who were not membeis, to break up the 
House and prevent a qm rum from assembling? 
A. No, not ; except members belonging to the 
House that they got an ord< r from .Judge * ra- 
zer 1 1 break open the door ana take Martin and 
me out. 

Q. I am not speaking of breaking open the 
Capitol for the arrest. I am speaUingof break- 
ing up the House. Doyoul.now wheih'r any 
attempt was made to prevent a quorum ? A. I 
don't know, except whut I heard fiom these 
members. 

Q. Well did you hear members that belong to 
the House speak of trying to prevent a quo- 
rum? A. Yes, sir, parti..ular!y Mr. Williams 
and Mr. Martin. 

Q, What did they say in that connection? A. 
Well, thev talked lo me at different times in 
regaidtoit. Tl ey tohl me that they would 
never vote tor this amendment. 

Q Did they say why thc-y had gone? A. No. 

y. Did they give any reason for having left? 
A. No. 

Q Please repeat what j'ou said that the Sher- 
iff (.old you about being ordered by Judge Fra- 
zier to break open the: Capitol A. When the 
Sheriff and policemen w re in my room I called 
for my watchman in the hall, who was eng.oged 
here. Ihese policemLU refu>ed to allow ti>is 
watchman to come into the roo n. I wanted the 
watchman there as a witness of what these men 
were doii g with me. Tiie repot fn m my 
watchm n you wil find in my report. The 
Sherifl'was ordeied to ineak in tlie building, and 
to an est m--, and to bring Williams and Ma tin 
out of the house. I heard this fiom the watch- 
man. 

Cross-Examineition.—Qvfsiior) by Judge Gaut 
—At nine o'clock on the 20 h, when j ou were 
taken over to the court house, and after Judge 
Frazier had taken hi,- si at ou the bench, stute 
yyhethpr there were a few, or a good many per- 
sons there? A. No. I expect luariiu was 
there, and only a few men. 

Q. I will ask you whether the Judge didn't 
ask whether you had any counsel, and 
yyhether you wanted to make any deense? And 
if I didn't reply to the Judge that I was ac- 
quainted with you, that perhaps you did 
not understand much about !• gal proceedings, 
and that I would speak lo you, and that yuu 
wautetl 10 make a statement to the Judge that 



YO 



I knew yon? Didn't I tell yon I wonld, and 
didn't I malte a siiecch for you? A. Yes, sir, 
that is so. Iliad no counsel then, and after a 
while >ou came to me and talked to me about 
my arrest, and delended me betore Judge Fra- 
zicr. 

Q Then I went on and made a speech for yon, 
and insisted before Judge f razier that you 
wereonly dong what you supposed it was 
vour duly to do; that you did not intend or 
mean any contempt of th(^ court atall, and that 
you were a German, and had been ia the Fed- 
eral army, and did not understand our pro- 
ceedings, and all that sort of thing? A. Tnat 
is so. 

Q. Then didn't the Judge state to you that he 
had no idea that vou intended an \ thing Wi on u-, 
altliongh it was a violation of the law not to 
oljey the writ, but that he had no idea of 
punishing yon, and thjt all he wanted was to 
get the costs secured ? Then there were tome 
parties who did not chaigeall the costs and 
they got it down to ten do lars, and you got 
the ten dollars and paid the cost aud went off? 
A. Yes. 

Q. That is all there is in it? A. Yes. 

Q. I will af.k you to s ate whether Judge 
Frazier did not tell you he would loan you the 
mouey? A. Yes, sir, he offered me the money 
il my friend did not get it. 

Re-direct Examination -Question by Mr. May- 
nard— Had you sent lor counsel? Do you know 
whether any of your messengers had gone to 
Mr. Trimble? A. I had no chance. I asked the 
Sheriff at the Commercial Hotel to allow me to 
get counsel and the Slieriff refused to do so. 

CJ. What counsel did you want to get? A. I 
wanted Judge Trimble or Jndge Harri-on. 

Judge Gaiit— You did not tell me or Jndge 
Frazier anything about that. You just told me 
you wanted to get rid ol it. Yon didn't tell ns 
about that at all. A. Yes, sir, I warned to get 
clear. I didn't tell yon anything about that. 

TESTIMONY OF MORTON B. HOWELL. 
M. B. Howell, Clerk and Master of the Chan- 
cery Court of Davidson county, was next called 
as a witness oa the part of the State and 
sworn. 

Question by Mr. Maynard--Your name and 
residence? A. Morton B. Howel), Nashville, 
Tennes-ee. 

Q. What is your official position? A I am 
Clerk and Master of the Chancery Court of 
Davidson county. 

(The paper which is given below, was here 
shown the witness.) 

Question by Mr. Maynard— Please look at this 
paper submitted to you, and say whether it is 
an oflicial paper fllcd in your office? A. It is, 
sir. 

Q. On what day? A. It is the bill of the May- 
or and City Council of Nashvil e, auaii st 
Henry Stone, F. W. Sparling and James Davis, 
Metropolitan I'olicc Commissioners of the city 
of Nashville. It was tiled in the office of the 
Chancery Court of Davidson county on the 
lirst day of August, ]86(i. 

The lollowing extracts from this paper were 
read by General Smith, one of the managers on 
the part of the Siate: 

Comidainant cha'ges that at the time of pass- 
ing this bill the body of men who pretended to 
pass it han ceased to be a Legislature; that by 
the usurpations of said members, or a m joiity 
of them, many of the counties in the State, and 
Davidson among theunmbe>-, had been dwnieil 
the rightof reijresentation in the Legislature; 
that Cave Johnson, John F. Thomas, Wm. Sim- 
mons, Wm.B Lewis, i^.E Gaut, W. K.Pat'on, 
and various other members, amounting to more 
than twenty, who had been duly and constitu- 
tionally elected, and about whose -'ekctious 



and qiiai ifications" astheso terms are used in the 
con- titution, there was no contest— were, by tlie 
usurpations of said body, and by the ilUgal aud 
revolutionary action of said body, driven rom 
the Legislature to which tlify had been proper- 
\y, and constitutionally, and rightfully elected 
and sent as Senators and Jiepresentatives, and 
therefore complainant expressly charges that 
after the people in many parts of the State were 
denied the right of representation in the Legis- 
l-.itnre, the action ot said maority was not and 
cannot be binding upon the people of the State 
as the action of a Legislative body, and there- 
tore said act of the said body, and which pur- 
ports to be an act of the Legislature, is a nal- 
aty. 

Complainant insists that this is a militarv or- 
gan izaiion and was so intended, as the bill up- 
on iis face shows; that the object was to strip 
t' e people of all powir, aud to take away from 
the people the means of i-irotecting themselves 
against the usurpations which are contempla- 
ted, and especia'ly was it intended to overawe 
ind contr >1 the ballot box, at the point of the 
bayonet if necessary, anl therefore is not a 
county or a corporation purpose. 

Complainant expressly charges tv-at the 
amendment aforesaid, and which purports to 
have been passed on the 24th of July, is a nul- 
lity, not only because the body was still hold- 
ing out and refus ng admittance to a large por- 
tion of the people's Representatives and Sena- 
ators, but beianse ol the mode of its ))retended 
enactment, the history ot which is as follows: 

For many da\s after the members nforesaid 
came tot^ether under the Governor's piocla- 
mation, there was no quorum in the Lower 
House, and if) was not pre'endtd that there 
was such quorum, and therefore the Legisla- 
ture was not organized and dii»l not claim or 
pretend to be organized. While the Legislamre 
was in this unojgwnized condition, the Senators 
assumed t > transact business, and causeil to be 
introduced what they called Senate Bill No. 2. 
and which they pretended to jiass on 
the first reading, ou the 16th of July, 
and on the ITth of July they pretended to pass 
said Senate bill No. Son its second reading, there 
being stil no quorum in the Lower House, 
and no organization of the Legislature. On the 
24th of July the act which was published, and 
which is r.tVried to above as the amendment, 
was introduced in the Lower House and passed, 
as was claimed, its first reading, but there was 
then no quorum in the Lower House, there be- 
ing only flfiy-four mtmbei s present, two others 
being by force held as prisoneis by the majori- 
ty iu another room o I the Capitol, but not being 
p'resent— the House having at no lime, up to this 
period, had any quorum. This was upon the 
first readinar In some way it was passed a 
secouii and third reading, bur whether with or 
without a quorunr is not known, aud it was 
sent to the Senate, when the Senate, assuming 
that what they h id done in reference to Senate 
bill No. 2, Ijeforethe Legislature was organize I, 
had prepared them for passing that bill on i's 
third reading, and as-uming this, the House bill, 
on what was calh d the third reading of Senate 
bill No. 2, was drafted in lieu, the error of Mhich 
lies in the fact that Senate bill No. 2 was not 
upon its third reading, because anything done 
before the Legislature was organized was mere- 
ly void. 

Complainant submits to your Honor that un- 
der these most exrtraordinary bills there is 
great danger o( irreparable mischief to the 
city of Nashville. Notwithstanding, as a gen- 
eral thing, the Legislature refers, in a great 
measuie, many things of a purely local or mu- 
nicipal character to the wishes if the people 
interested, yet in thtse instances the su-calied 
Legislature defied the people and their wishes, 
and in the most indecent haste and against the 
rtinonstrauces of the whole people, (because 
not oue man in one hundred who had not real 



71 



or paramount interest in the city desired such a 
law,) und with a contempt tor the people rare- 
ly if ever seen i)) this country, these measures 
we-e passed by the so-cailed Legislature. 

Under the chills, which are unj use and op- 
pressive, and dtstroy the la-t vestige of demo- 
cratic government, so far as the ciiy of Nash- 
ville is concerned, and which are partial and 
therefore void, and in the aggregate as well as 
in detail most palpably violate the provisions 
of the consriuition. 

Ic will be seen by reference ti I he pretended 
laws of the so-called Legislature that the iviay- 
or and Cicy Council being lett standing they 
still have inany duties and burdens impo.-ed 
upon them, )3nt all means of c«m' lying with 
their duties are taken away, and said pretend- 
ed laws have been so bunglin-;ly pa'-sed that 
they, if put in force, will unquestionably put, 
or set up an organizition in many respects over 
and superior t> the ftlayor and City Council, 
and in many respects it wiil cOLne in conflict 
with it. and will retult in collisions and Irre- 
mediable niischiel'. 

Complainant submits if the action of this so- 
called Legislature in estab ishing or converting 
the c'ty of Xashvilie as a corporation into a 
despotic, instead ofarepubicau government, 
is not in conflict with the spirit and mean- 
ing ot the provision of tiie Constitution of the 
United States, which says "the U itcd States 
shall guarantee to everj" State in this Union a 
rcpubl can form of gov rument. Complainant 
suDmits that the establishment of a despotism 
in a single city in one of the States, is a serious 
blow at the St<ate, and should, noc beallowen; 
and that while the purpose was attempted to 
be covered up, these bids need only to be read, 
to see that ail absolute military <iespoi,ism is 
establisheil for each of sa'd Metropolitan Po- 
lice districts; and if once or^aniztd. the 
■/emedy at the-e critical times may be beyond 
the reach of the people. 

The premises considered, let said Stone, Spar- 
ling and Davis, who reside at present in Da- 
vidson county, be made defendants; let process 
issue, let them answer all tlie allegiitious of 
this bill, and finally decree that said two seve - 
al acts, or what purports to be acts of the Leg- 
islature, be declared illegal, and in violation of 
the provisions of the constituiion. In the 
meaditime, let said Henry Stone, F. W. Spar 
liag and James Davis be enjoined from taking 
any steps to organize a government lor the city 
of NashviLe, aid from arming and equipping 
any police force, and iroin taking possession of 
the city property, and from displacing the Re- 
corder and policemen who liold tneir otlices aiicl 
positions by contract with comidamants, and 
Anally let this injunction be iiiaiJe perpoiuul. 
This is the flist application for an injunction in 
this case. 

E. H. East, 
E. H. EWING, 
CAKUTHEKS & COOPEB, 

JOUK C Gadt, 
IV. 8. Brown, 
N. Baxter, 

N. L HEMOSS, 

COLYAR 6t Marks, 
Solicitois for the complainant. 

After the foregoing was read, 

Mr Ewing said— v\ e object to this as res intfr 
alios acto. i'hat has nothing to do with this 
case It transpired long alter the matters with 
which he is cliarged took (jlace. It contains no 
admissions of ids, and in no wiiy that we can 
conceive is ic relative to this case. 

Mr. Trimble— If the court please, we think 
that this is relevant to this oase. We have 
shown the animus of a large portion ( f the peo- 
ple here at Nashville towards the Legislature. 
We have shown, also, that it was '-upposed to 
be backed by the very highest authority in the 
land. We oil" r this as a proof of the animus of 
the community where this transaction took 



place. We ofi"er it to show thiit not far from the 
time when this transaction took iilace such was 
I he animus of the community that a bill was 
tiled in the Chiucery Court by able and learned 
counsel: that it was permitted to be filed by the 
Chanc'llor himself, and fli it the very spirit of 
th" bill is necps-ariiy seditious in its character, 
'that bill declares in efl'ect that the Les^isla- 
ture is an illegal body; that it is a bogus Legis- 
lature sitting here in the town of Nasliville. 
It does not contain that courtesy^ ami that re- 
spect, which one de)! iitment of tde govern- 
ment should show to another. In ortlinary 
times that bill would never have been filed in a 
court or temple of justice in this community. 
We desire to show that this spirit actuated cer- 
tain members of the House and perva'ied the 
entire community, and even entered into the 
sanctuarv of j ustice itself. This was a spine 
which, in its characttr and temper, was nece- 
s inly dest'u tive'o the govern. nent, ana which 
tended to proluce a state of anarchy 
and confusion. This is our object This 
is a symptom of the times and a 
proof of the darkness that was pervading 
the land. For that purpose we read ttiis to 
show the animus which pervaded the whole 
community. ;ind to show that ic extended even 
to the higher classes of the community, and to 
show that it i cached even to geni'emen learned 
in the law, gentl men who are un- 
usually regardful of the law, gentle- 
men who are regardlul of all the courtesies 
that ought to exist lietweeii one branch of the 
governmenr and another. That is our object in 
introducing this paper. We desire to show the 
circumstances under which the L' gislature 
sat, and that Judge Frazier, as a member of 
this community, knew the spirit which was 
pervading the people. Judge Frazier was a 
'member ol this community, and mingled with 
the peo|)le. He was a man of character and a 
man of intelligence, and knew the spirit which 
was pervading the community. 'Inat is the 
point 01 view in which we ofl'er th'S pa|)er, t^led 
in a court of justice; filed in ore department of 
this governmiriit against another department 
of this government. We think ttiat he was 
acquainted with all that w is transpiring 
around and in and through the community. 
That is the object of it. 

Mr Ewing— May it please the court, I am un- 
able to see any connection that maybe made 
between this record and ' he case now before the 
court. It seems ti me that we might take up 
any other record that has existed at anytime 
sui'seviuent to this matter or at auy time prior 
to this matter concerning the legality of the 
Legislature. Where individual ri?hts are con- 
cerned, where corporate rights are concerned, 
or where men belonging to the corporation or 
iudividuals of a city or 01 a coun y choose to 
assert their rights because they regarded an act 
of a General Assembly as either beiiitr uncon- 
stitutional or as having not been iiassed by a 
legal Assembly, which questions they have a 
right to make, which questions are to 1 e pre- 
sented to courts, which questions are to be ad- 
judicated by the highest court known lo the 
land, by tlie Supreme Court of the State, by the 
men ^ ho are appointed by the ruling authori- 
ties in the .•state. 

Mr. Trimble— Will yow allow me? We don't 
object to tlie filing of a bill, but we object to its 
spirit. We appeal to it as showing the temper 
01 the times . It is not that we deny the right 
to file a bill, but it is the spirit in which that 
bill is drafted and theterms in which the Legis- 
lature is spoken of, which, I say, connects itself 
with this general spirit pervading, at that time, 
the whole community. 

Mr. Ewing— I hope the gentleman is now un- 
derstood, and that he will not make another 
speech. I tliink Ij have the conclusion. May it 
please the court, I hope Judge Frazier is not to 
be held responsible for a bill that was filed by 



72 



the corporation of Nashville, and by the counsel 
employeii by ihe corporation of JSTashville, to 
assert "what they deemed to be their lights. 
They may have beea aciuated by a spiteiul or 
byabiul spirit. They may have attacised the 
Legislature fiercely in tlie assertion of their 
rights, a'i they considered tbem. We respect- 
fully submit, may it plea-e the court, that 
Judge Frazier is not respon^ible i'ov the ti m 
per that may have character zed particuLir 
individuals as lawyers or as counsel lor 
the corporation. Whenever a man attacks 
an art of the J egslatuve as being umon- 
fititutionol he is obi gid to put down 
the facts. 'Hovf suppose it is the opinion of a 
lawyer that tbere was no quorum, no legal quo- 
rum, to pass an act of the LtgisUiture. Sup- 
pose it is the opiuion of the lawyer th;it if there 
was a quorum the law was not pas-ed th'' legal 
number of timis. How ;s he" to chiiractense 
this? There is not the word bogus Legislaiure 
in this bill. The bill just i out ins enough, and 
no more than enough to bring out the quesiiou 
that Was ilesned to be raised in that regard be- 
fore the Chancellor. One of the Cluincellors of 
the State, <me a:jpointe't by the dominant party, 
the ruling party of the State, op.e who had been 
no great wi.ile chancellor oi-the courts, issues 
an injunction. He finds upon the face of the 
bill nothing that shou d be st' ick^n out for dis- 
respee't, and nothing ihat could be put down as 
billingsgate in the bill. The matter is dis- 
cussed befoie him. He de ides the question 
that is made before him in regard to the injunc- 
tion. An appeal is taken to the Supreme Court, 
and the mitter is th- re now peii' i'g, and (or 
the first time, we have it liere that th s is dis- 
respectful to Ihe -Legislature. That posi- 
tion was not taken by the coui-sel 
on the other siile The counsel on 
the other side treated this as an atiempt to as- 
sert the rights of the corporation of >). s'.vil e, 
and answer was made accordingly. Some of 
them denied the position that was taken ivhen 
they came to answer this by way of demurrer, 
but they never thought of this mutter a» scan- 
dalous or as impertinent, or as making an at- 
tack upon one idiheco-ordinate branchesof ihe 
governmeuc. It is for the first time now that 
this is brought in any way to our attention 
I am sure as one of those who signed that, bill, 
that 1 thought of no disrespect to the Legisla- 
ture nor Lotuing of the kind, though 1 did not 
draft the bill. My name is signed lo it. I thought 
of nothing but oi bringing nut trie question be- 
fore the court iu regard to the corporate rights 
of the city of Nashville. But, s.r, how can this 
question be connected wiih the ca-e of Jtulge 
jb'ruzier? Are we to go over the history of the 
country previous to the transpiringo; the events 
for which he is arraigned here, and 
subsequently, and if uuy man can 
be found to have filed a disrespectful 
bill in one of our courts that that is to be an ev- 
idence of the animus ot Judge Frazier ? Wliy, 
sir, we regard Judge Fi azier as a Union man. 
He was universally regarded as a Union man. 
Now suppose, sir, that any other Uniun man 
sliould be attempted to be made a member <f 
this conspirac , i-s it is called, to deleat the ac 
t on 01 the Legisluti're, and that any of the 
members of the Lcgi>latU!e weie attempted to 
be shown to be' members of a conspiracy be- 
cause there was a general animus among the 
citizens of Njshville, or among the citizens of 
surrounding counties, hostile to the rule of the 
dominant party, and that that member is to bo 
arraigned, tlioiigh no connection could be made 
between him and the paper that was produced 
The paper is to be brought in.o court, and be 
cause there was a general leelinsr, or a large 
feeling, against the act on of the Legislature, 
that he. a declared Union man. is to be affected 
although he is adeel red liadical man, if jou 
please; that he is to be brought into couit, and 
a paper used against him, because some imper- 



tinent man may. subsequent to the transaction, 
with which he is charged, have filed a bill in a 
court, in which bill there is scandalous matter. 
It yon please, sir, I am at a loss to see on what 
principle this cm be attempted to be adduced 
here as testimony. It is the flr-t time that I 
ever heard that ac tions subsequentto the trans- 
actions for which we are arraigned can be ad- 
duce t as evid'-nce. It would be like bringing 
up a subsequent murder ti convict a man of 
murder iu regard to one that had previously 
taken place. 

The President— The question before the court 
is, whether this record shall be received as evi- 
dence or not 

The question was then put, and the court 
decided by a vote of eleven ayes to eight noes 
thiit the paper above referred to should be re- 
ceived as evidence. 

Mr Ewing—The question is whether it takes 
a majority to decide a cjuestion or a two-thirds 
vote. This is the flist time w have had an op- 
portunity to make this question. 

Mr. Trimb e— Have you any authority? 

Mr. Ewing— if we have any authority we 
will pioduceis. 

Mr. Tr mble-Then let us adjourn it over. 
The constitution shJ's that all impeachments 
shall be tried by the Senat''; that the Senators 
sliall be on oath or affirmation, and that no per- 
son shall be convicted without thecon'urrei ce 
of two-thirds of the members trying the oflicer 
impeached. 

Judge Brien — We consider that the testimony 
is governed ny the same rules. 

Mr. Trimble— We hold tliat this is perfectly 
absurd, but then, as the gentleman claims tlie 
right to open the argument and to conchitle 
it. We wi-h to hear them first upon this point, 
and to see what authorities they may produce 
There are a great many impeachment cases re- 
ported and published. We liave the rase of 
Haskell antl Wil.iams in this State, anil we 
have tl.ose of Cha-e and Feck before the court 
of the United States. There is roihing in this 
question that has LOt been raiseii there. Ihe 
gnntlemen are prepared, I suppose, We wish 
to hear them first. 

Mr. EAvin^'— I will state our position to the 
genileman; butheha^ not aright to require 
that we sha 1 speak at the opening whether we 
want to or not. Our posit'On in regard to this 
matter is this: That the Constitution of the 
State of Tennessee lequires that no person 
shall b's convicted without the concurrence of 
two-thirds of the Senators s worn to try the oflicr r 
impeached. This is perhaps, the first "time iu the 
State of Tennessee i hat such a case existed, for 
the Constitution of 1796 d'd not require the 
same thing that is required in the Conititution 
of 18:^4. It requires tuat two-thirds of tnose 
Senators sworn to try the case sh 11 be necessa- 
ry to a conviction. There has been no case of 
an impeachment before in the State of fennes- 
see since t e adoption of the Constitution of 
1834. Th re are m 'ny things that were done, 
many tuings that were decided under impeacli- 
nients previous to the adopuon ol this constitu- 
tion, ami they may or may not hear upon the 
questions that arise. Now, the point uiion 
which we insist here, and which we deeniff 
impuitance, is that the same number shall be 
required to dec'de upon questions of evitlence 
that is r. quired upon the linal vote. And why? 
Because we apprehend that this case is to be 
decided according to the testimony. 

If illegal or imp:ot;er testimony be intro- 
duced, and it is allowed by this court it wdl 
have a bearing informing an opiuion on the 
final result. Suppose this court by a majoiity 
were to decide that every portion' of the testi- 
mony ofl'ered by the defendant should be ev- 
cluded. Suppose they should decide by major- 
ities and that the defendant then had no lesti- 



73 



mony before the court, and that a niujority- 
shou'ld decide that all the testimony given on 
the piu-t ol the Stiite was valid. I am su|)i)os- 
ing an extreme case, lor I have no idi a that any 
such course as that will be adopted by this 
court, but this is merely lor illustration. 
Suppose that a matter wh'i.-h was vit il to the 
deiense should be offered as ti stimony, and 
that the couitby a mnjonty vole relused to 
consider ihe evidence, which if received wou d 
be tr.n'a'Jionut to an acquittal and which if not 
received would cause aconviition. Isn't tie 
whole ca e de ided then by a vote of tlie major- 
ity, excluding testimony, which, if admiited, 
would have constituted an ampie defense? It 
srems s '. sir. You are voting br a majority for 
the reception of testimony tha' willconvict.and 
you are rejecting testimony upon a majority 
that wdl practically determine the question 
before a final yo'e is reache). You are sworn 
to try this case on the law and the tt stimony. 
anl whatever you deiide to be te>timiiny is all 
you can lo jk at. You are not a court exempted 
from rules. You are no more exempted frcni 
the rules of law than any other court. You are 
both a court and a jury. You are not exempt- 
ed from the rules ot law, and one 
of til se rults of law is that jou must decide 
according to the testimony presented 
in the c se. A judge may make a mis- 
take. Suppose the ease chat was once presented 
In Englind. It was held that it w:is not neces- 
sary to produce the corpus in court before the 
conviction of the purty arraigned. Under that 
rule, which was obligatory, many cases were 
found in which convictions w- re had for tlie 
murder of a man who was afoerwards found to 
be alive That was upon a rule of testiiuony. 
Now 1 will suppose that to be appli'd to this 
case. Suppose that a< important a matter as 
that of finding a dead body and making jiroof 
of it, in court were to be demanded 
Would that not be a decision of the 
cause at once? The court would 
say th;it thfse were strong enough circum- 
stances to satisfy the court that this deed was 
done, and the p irtj- is not allowed to introduce 
testimony that would piovehis innocence. Now 
in regard to this case, if this testimony is ex- 
cluded ivom your consideration, which testi- 
mony we think is a necessary ingredient in the 
case, \^ ould you not ijraotically be convicting 
the impeached prrtyby a majority vote instead 
of two-thirds? That is our objection, and it 
seems to me that this is perfect y absurd. 

Mr. Miiynard— I suppose thita'litile authority 
is worth much more ihan a great deal of argu- 
ment. I have in my hand theKm-as trial in 
whicSi the nimes of eminent counsel in the de- 
fense are mentioned — Mr. Stiiiton and Gov. 
Shannon. That decides the rule as the i'resi- 
dent has announced, and as we understand it 
lobe. 1 also have a precedent in the case belore 
the Senate of th« United St'tes, on the trial of 
Judg<- Pickering. In thit case a question was 
deculed by a majority vote, aid not by a two- 
thirds. 

Mr. Ewing — Was there any question made in 
th^t case, Mr. Maynard? 

Mr. Itaynard — t rlon't say that there was any 
quest on made. I take it for granted, however, 
that the Senate of the United States knew what 
they were nbout. 

Mr. Ewing— I suppose they knew what they 
were doing. 

Mr. Mnyuard— In the case of Judge Williams, 
a question was objected 10. Action was taken 
and the question was permitted to be answered 
by a vote ol ten ayes and seven noes. Nathan 
iiWii'g was sworn. Be was asked a question, 
and the que tion was objected to. After argu- 
ment, the answer was excluded by a vote of six 
ayes to ten noes. That settles the same j nnci- 
pie that a bare majority exclnd- s the arswor. 
In Cush'ng's Manvial It is stated that in the 
coustiiutions of most States it is provided that 



the concurrence of two-thirds of the members 
will be necessary to convict, but unless there is 
an express provision, a majoi ity is sufficient. 
If these precedents can settle anything they 
settle the proposition. I think, very conclusive- 
ly, and setile it as the President of the court has 
intimated, that upon questions ol evidence, etc. 
the opinion of the majority must decide i-et; 
us suppose, for example, when the defendant's 
counsel shall bring in his testimouy, that a 
certain portion of it is objects d to. The ques- 
tion is asked and submitted to thp court, shall 
the question be answered? Will it then be in- 
sis ed that unless there is a two-thirds vote the 
testimony is not valid? By examining the 
books more precedents can be found, but this 
seems to me to settle the question. 

Mr. Trimble— As I said before, there is but 
one provision in the constitution on this ques- 
tion. Article .5th, sections 1, 2, 3, 4 and 5 are 
upon the subject of impeachments by the Sen- 
aie. The first section provides that the House 
of Representatives shall have the sole power of 
impeachment; the second, that all impeach- 
ments shal be tried by the Senate; when sit- 
ting for that pnriiose the Senators shall be upon 
oatu or affirmation No p-rson shall be con- 
victed without the concurrence of two-thirds 
of the tenators sworn to try the officer im- 
peached. What does that mean, requiring two- 
thirds for the conviction of the party? 
It does not say two-thirds in the pro- 
ceedings of impeachment. It does not 
say two-thirds upon questions ot evidence 
arising in the trial. But the constitutional re- 
quirement is simply that no person shall be 
onvicted without the loncnrrence of two- 
thirds, that is upon the flual vote as to the ques- 
tion of guilt or mnocenc, which involves con- 
viction or discharge, and upon that quest on 
two-thirds are required, and upon no other. 
Why should it be otherwise. The gentleman's 
argument is that this provision of the ' onstitu- 
tioii req-.iires two-thirds at every step from the 
initiation down to theclose?that you must have 
atwo-thiids vote all (he time, because that is 
an elemmt in the convict on of the party. It 
require? then two-thirds of the Senate to initi- 
ate the first step in the proceed- 
ing. According to this idea two-thirds 
are required on the adopt on of rules 
and on questions of ailjournment, for these may 
bear on the final vote as to the guilt or inno- 
cence of the party. In other words, a court of 
impeachment cannot move its little finger un- 
less there is a two-thii ds vote for it, and at any 
stage you can checkmate. Why should it be 
so in the proceedings? The two-thirds final 
vote is required out of abundant caution in 
some States , but not in all. It is done probably 
to avoid the operation of passion an i party 
spirit. Then there is a reason why on the flnul 
vote two-thirds shoiud be required, but no 
reason why it should be required on other 
questions. 'Ou the contrary there is every rea- 
son against such a requirement. Upon the or- 
dinary proceedings, adjournments, motions, 
rules of evidence, etc., a majority may be re- 
lied ou without invading a principle ol hu- 
manity or generosity or magnanimity. Before 
a jury, it requires entire unanimity. So here, 
when a 1 the evidence is in and the law has beea 
read and arguments made and the final ques- 
tion ot guilt or innocence is to b ■ decided, the 
de;endant is given the advantag • of having 
two thirds to tiecide the question. This is tlie 
first time that this ques'ion has ever 
been raised in any court of im- 
peachment, because it never had been 
supposed by counsel to be necessary. Pre- 
cedents have been read from the Williums case. 
Ab e counsel were employed )n ti at case, and 
probably no abler counsel were ever employed 
than in that. But this question was not even 
thoughtof, though ever? step of ground wascoa- 
tested inch by inch, although probably at the 



74 



bottom of that case lay political motives that did 
not develop themselves. Nor does this quest on 
appear to have beeu made in any ini!)eachment 
hefore theSunreme Court of the" United Stat- s, 
where a two-thirds vote is required to couvi't. 
Upon these ordinary questions, therefore, in the 
cases of Haskell and Williams, cases that oc- 
cur>ed in Tennessf-e. »nd the ca-^es of Chase and 
Peck in the Supreme Coun of the United States, 
the question of law is that upon all questions 
except the final vote two-thirls were not re- 
quired. The gentleman says the case was not 
made. Why was it not made? Was it not open 
to the eyes of the counsel who dt fended Jiidtje 
Williams'? The court ilecided the questions 
that came up by a simple majority. I appre- 
hend it is too late to come here now without 
any authority, and attempt to disturb these 
precedents. 

Mr. Ewing— I don't wish to detain the court, 
but I mean to be uuderstf o i; Imean that the 
court shall see what th'- nature o' our objec- 
tion is, and I mean to show, if I have not shown, 
the reasonable and valii grounds upon which 
the objection is taken. Tlip gentlemen say we 
have no authority. I say that we have the au- 
thority of I he constitution, and I say that, upon 
the authority of the conscitution and the air 
deductions from the i revisions of theconstitu- 
tion, we are right iuourdemand that there shall 
be a two-thirds vote lor the exclusion of this 
testimony. Now, sir, do the gentlemen pretend 
til answer the fair deductions to be drawn from 
the constitution in the argument of this case? 
I don't object to their relying upon authority, 
but the position taken by them was that tiie 
reason of th" thing was upon their side. Have 
I heard any answer, has ihe court heard aiiy 
answer to the difficulties that I presented in re- 
gard to the manner in whcli the final conclu- 
sion is to be arrived at? I repeat then, Mr. 
President, i hat there is as much necessity for 
adherence to this rule In regard to a vote of two- 
third> upon every imporraut question of tes- 
timony chat IS raised as there is in regard to the 
final vote, for it is upon the testimony thatwc 
are either to be aequiited or convicted, and if a 
majority can say that this is testimony and that 
is not, tiien the court is bound to look alone to 
that which is adduced as testimony and al- 
lowed by the court. Our conviction or ac 
qiiittal depends entirely upon tlie administra- 
tion of that rule But the courts have said re- 
peatedly that a man shall not be asked any 
question in regard to any matter that will lead 
to his conviction. 

Mr. Maynard— I have been examining the 
case of Haskell— I find on page 384 this prece- 
dent-- 

Senator Carrigan--! think we have already 
adopted a rule in regar i to this matter. 

Motion was here made to adjourn, but was 
lost by a vote of 8 ayes to 11 noes. 

Mr. Maynard— The difference between the 
old Constitution of 1796 and the Constitution of 
1834 is that under the old constitution two- 
thirds of the whole body were required, and 
under the present two-thirds of the members 
sworn lor the trial of the case are required. 

Judge Patterson here remarked that Mr. 
East and himself had been selected on the Con- 
ference Committee on Rules, and that they had 
agreed that this question was settled by parlia- 
mentary laM', and did not stippose that it would 
be mooted, but that if it was, the action of the 
Senate would decide it. 

Mr. Ewing— I think there is a difference be- 
tween these two constitution^ o theStite. Un- 
der the present constitution two-ihirds of the 
members sworn are necesaryto eonviction;under 
the Constitution of 1796 it is required that there 
shall be two-thirds of the whole House. Two- 



thirds of the whole House imder the new con- 
stitution is two-thirds of the number sworn. 
Those sworn are the whole House so far as the 
question of impeichniert is concerned. Suppose 
that under the oM cristitution there were two- 
thirds of tne whole House swtiru and two thirds 
of the whole House necessary to conviction, and 
two-ihirds of the whole House necessary upon 
every qufStion that arose collaterally, then it 
would require alisolute unanimity upon every 
question that arose, and upon the final vote. I 
aiiprehend that there is a manifest distinction 
between a trial under the Constitution 
ef 1834 and the Consti ution or 1796. 
But under the Constitution of 1706 I 
say that we have no adjudication. A prece lent 
for t' 6 government oi a court is a point adjudi- 
cated upon by some nther couit. If in courts 
01 impeachment wc have questions adjudicated 
that have been presented, those are precedents 
that deserve ccmsideration. If inadvertently 
or negligently in the trial of a case, any testi- 
mony may have been introduced, I Msk the gen- 
tleman Whether that forms a precedent or not? 
Mr. Trimble— Practie.e and habic Avoald cer- 
tainly. 

Mr. Ewing— It would require a very long 
practice and a very long habit Avhere a question 
was m:ide. You would be going thrdash all 
the C'urts and you would find that one ju'ge 
ol a Circuit Coiirt had admitted testimony un- 
objected to, and that might be brought in as a 
precedent for the government of every other 
court. Precedents are not formed in this fashion. 
Precedents are formed when there has beeu a 
question made beiore a court, and when that 
court has artji:dicated it. 

Mr. Trimble— In this case of Haskell the Sen- 
ate consisted of twenty niem'jers. Here is a 
vote taken up -n a question of 10 a^'es and 9 
noes. That was acted upon as being the law of 
the ease 

Mr. Ewing — Well, you have read four or five 
cases where they adopted that vule. In that 
;ise, without any question, there were votes 
taken, and the majoriiy was allowed to govern 
in regard to celbiteral question*, :;nd no one 
made the question. Now ihe gentleman throws 
up to me that verv able ciun>el were employed 
in that case, and I accord to thtm all the ability 
that he can give them. I do not rccoU-ct who 
they were, but my general recollection is that 
they were men of ability. But I apprehend 
iheiehas been many a question decided contiary 
or decided fince. There are the cases oi Biow n 
and Anderson, and Yugger and others, to which 
I might refer, and emiuijiit counsel were em- 
ployed. But there huve been many questions 
dec'ded since that time that were not then 
presented. I don't look tip to any man, or set 
of men. as guiJe^ in the law. Th(iUS'h these men 
were men of ability, they passed many things 
without objection that have since licen objected 
to and the objections sustained by the Supreme 
Court. What is done at every term of the Su- 
preme Court? Never yet have I seen a ca e de- 
cided upon the bare presentition of the fact 
that in another court no objection was made, 
and tiiat that is to be taken as a precedent. If 
no ol jection were made on account oi the pe- 
culiar luttui-e of the constitution under which 
they were trying the case, or if no objection 
were made because it did not oceur to them, is 
that a reason why the case sh;>uld be the iame 
undei the present constitution? 1 say that we 
are entitled to the exclusion of this testimony 
and to 1 he exclusion of it under the principle 
laid down in the constiiution. 

The President then announced that the ques- 
tion was whether the ruling of the ch;iir should 
be sustained. The vote was 15 ayes and 4 noe-;, 
and the ruling of the chair was sustained that 
a two-third vote was not required except on 
the final vote for conviction or acquittal. 

On motion of Senator Thompson, the court 
adjourned. 



75 



SATURDAY, MAT 18TH, 1867. 

The court was called to order at the usual 
hour, by the President, the members of the 
court being all present. 

After the minutes bad been read and approv- 
ed, the member from Washington, Mr. Nelson, 
offered the following: 

" Resolved by the Court, That the present rules 
of the court be so amended that all questions 
demanding a call oi tne ayes and noes shall be 
decided by a mujonty vote, except the vote of 
final decision as tj the guilt or innocence of the 
respondent." 

Mr. Ewirg— I would merely suggest, Mr. 
President, that it ffouid be well not to have a 
resolution binding upon the c urt. It would be 
somewhat extraordinary Jor an ordinary coiirt 
to say that a ceriain coune should govern 
without reference to the rules.. The decision, I 
appri'htnd, is obligitoiy upun the court s-o fa* 
as it is applicable to luture rases. We are will- 
ing to maK^e no objection heveafter where the 
('ecision of the court .'pplits. Counsel agreed 
that there would be no dicussion as to what 
had all ea"y been adjiulicate *, but a gei eral 
resolution of this kind might involve the court 
in some tlifliculty liereafter uule-s it coild be 
resciuded upon t-ome other occasion that we 
don't anticipate. 

Judp;e Patterson— If the court please, I will 
simply state that in addition to the prece- 
dents" announced yesterday there is tlie 
case of .Uidge Chase before th-; Senate of the 
United States, where upon preMminary q'es- 
tious a majority vote determined, and it occurs 
to me a lit'le strange that that authority 
can be doubted, fiom the fact that 
it is to be determined and is deter- 
Diiuinl by parlamentary usage and parlia 
mentarv law. Theieis cirtidnly nothmg in 
any -.lutliority that may be referred to requir- 
ing more than a majoiityto di termine these 
questions. The precedents are numerous and 
all one Wfiy, and ihe question ought really not 
to have arisen, as there &re no precedents to 
the contrary. I refer to these additioral pre- 
cedents as being more conclusive. If i he court 
desires ii, they can be reft rred to more spe 
ciallv. 

Mr. Ewlng-I have no doubt it is so. 

Judge Patterson— In one vote tht re were 20 
ayt:js and 10 no' s ; in at other 21 ayes and 9 noes ; 
in a thiid 22 ayes and 8 noes. The question has 
really never been agitated before, audi pre- 
suniL- from the fact that it is settled and fixed 
by parlimeniary law, and that the two-third 
vote is only rt quin d on the final action, and it 
is requift-d there as a pecu'iar >afegiiartl. But 
in regard to all other questions parlimentary 
law oi' course must govern. The precedents 
are all that way, and reason and common sense 
confirm them. 

Mr. Trimble— If the court please I regard the 
action of the Senate yesterday as absolutely 
conclusive on tlii< point. The question was dis- 
tinctly raised and argued, and the court decid- 
ed it. It is therefore settled forever and abso- 
lutely. I si- all not re-open it. This resolution 
which ihe Senator from Washington offers is 
simpiy an attirniation in express terms of the 
judg ent of the court, and therefore I don't 
see why it should not be adopted. There can 
hereaiter be no question maae tliat it was not 
directly and positivel\ decided. 

Mr. Kwing— No, no. It appears on the min- 
utes of the court that it was decided, and ii the 
other pi-ecedeuts had been of thai character 
they won d have been enforced. I suggestwhat 
I do with a view to the future convenience of 
the court and of the counsel. But we need not 
afllrm or resolve in general terms in regard to 
a matter which may afier awhiie involve us in 
difficulties. If the present decision applies, the 



whole case is seitled, and we make no further 
objection when a case arises of this kind; but 
if it does not apply, then it has never been set- 
tled, and in my oiunion it would be improper 
to resolve more than the court has already de- 
cided. If thev hHve decidtd it, it will apply in 
every case; if they have not decided it," an 
alfirming >esolut:on ouglit not to he as'opted. 
The precedents the gentleman offered this 
morning were rather unfortunate I think, as ia 
evcr\ case there was a two thirds vote. 

Mr. Trimble— It was not announced as a two- 
thirds vote. 

Mr. Ewing -Precedents, as I understand 
them, are such as we made yesterday. If here- 
after a court should sit in the State of Tennes- 
see, and a cjuestion should arise upon the testi- 
mony, this precedent could be referred to. It 
was submitted to the Senate, and the Senate 
decided that the law of tlie consiitution in re- 
gard to a two thirii vote applied only in relation 
to the quest on of final conviction or acquittal; 
and, therefore, that would be what I call a pre- 
cedent But I don't call these others preceilents 
unless there wps such a l"ng practice as would 
make th>.m nart of the common law of the land, 
This is not of much importance, but I have sug- 
gested this for the convenience of the court, 
that hereafter some question might arise to 
which this decision might not ai)ply If no 
such question as that arises, there will be no dif- 
ficulty. 

Senator Hall— I think, sir, that it is not aeces- 
sarv to pas? that resolution, lor I think it is the 
general understanding that the action on yes- 
terday was final. I hope the gentleman will 
withdraw the resolution. 

The President— I do not see any need of leav- 
ing ic upon the record; st 11 some question may 
arise in which the court might be a little em- 
barrassed in the matter. Notwithstanding this 
I apprehend that no such question will arise. 

Tlie motion was adopted, ayes 14, noes 5. 
TESTIMONY OF MORTON B. HOWELL RE- 
SUMED. 

Morton B. Howell was then cross-examined 
by the counsel for the respondent. 

Question by Mr. Ewing— Mr. Howell, are you 
acquainted with Judge hrazier? A.I am, sir 

Q How long have you been acquainted with 
him'? A. From about the time he became Judge 
of the Criminal Court in this District. 

Q. What is his standing in this community as 
a man of honesty and honor, and as an up tght 
judge? A. I have heard his character as a 
judge spoken of quite frequently by those per- 
sons Avith whom I have been associated. He 
has been regarded by all as an upright, con- 
scientious, able judge, and I have never beard 
his lionesty or integrity impugned. 

Q. Do you know what his reputation was in 
regard to \o\ alty to the Government of the 
United State?? A I know nothing about that 
of my own knowledge. 

Q. What was his general charact r upon that 
subject? A. His general character was that of a 
Union man from the beginning, steadfast, un- 
wavering. He was so reg.irded in an especial 
degree when he wae appointed Judge of the 
Criminal Court. 

Q Was he not a refugee from the mountain 
district? A. I have heard that he was. 

Q. On account of his Union sentimects? A. 
So I heard. 

Q. Did heloseeverythingup there in conse- 
quence of these sentiments? A. 1 think I have 
also heard that. 

Mr. Trimble— That is not a legal ciuestion. 

Mr. Ewinff— Not if you object to it. 

Question by Mr. Ewing— Did you at any time 
the trial oi the habeas corpus case was going 
on, or at any time previously to that, have any 
conversation with Judge Frazier in regard to 
his views of the contest going on in the Legis- 



76 



latnre? Dirl yon hear any expression of his in 
resard to it, and whuthe)' hi- sympathies were 
■with the revolutionary party or opposed to 
them? A. 1 tliink not, sir. I have no vecoUec- 
tion of any such conversation, or of hearing 
him s ly anything in my presence, nor did I ever 
hear any one else say what his opinion was. 

Q. Do you know anything of the habits of 
Judge Frazier when he was in the town of 
Nasuville or elsewhere in the county, in regard 
to his being an excited politician or" taking any 
groat intere-t as an excited politician on one 
side or the otber after he was made a judge? 
A. I had some business with Judge Frazier, 
which caused me to seek for him on several oc- 
casions. 

Mr. Trimble — The gentleman ought to confine 
himself to his general character; particular 
conversations will not do. 

Answer continued— I was going on to say 
that I found that Judge Frazier, so far as I was 
abletoUarn from my own observation atnl 
from inquiry, that he crime to town in the 
inoi-ning and sat on the bench, and immediite- 
ly afti rwar'S leturned to his home. 

Q Those were his habits? A. Those were 
his habits. I was about to show ! ow I ascer- 
tained that, for I had business with him I 
found it difficult to see him only on the bmch, 
because I could noc find him at any other 
time. 

Q. Was that the case in the summer of 1866? 
A. I cannot say in regard to that. In the fall 
of 18(16. 1 had occasion to inquire in regard to 
him. It might have been in the early part of 
the winter. 

Q. Do jou know whether Judse Frazier had 
any knowledge of the Metropolitan bill th.at 
was filed, or any connection with it in any way? 
A. I have never seen him in my office tliat I 
recollect of. I never said anything to him aiiout 
it. We only spoke about a chancery case in 
which he was personally concerned. 

Question by Mr. Trimble — Mr. Howell, you 
were Clerk of the Chancery Court in July, 1e6G? 
A. I was, sir. 

Q. What were your office hours— did you per- 
form the business in person? A. A great part 
of the time. 

Q. What were your office hours and habits in 
July, l!:6(j? A. The court was in session, sir, 
during July, 1866. 

Q. Was your whole time given to the duties of 
your office? A. My whole time from early in 
the morning untfi alttr dark. 

Q A very 1 ;borious olUce. A. Yes, sir. 

Q. You were out very little? A. Yes, sir. 

Q. How often did you see Judge Frazier in 
July, 180'i? A. I don't recollect of having seen 
him at all. 

Q Do you know of your own knowledge 
where he resided? A. I don't reroUect of hav- 
ing seen him at all 

Q. Do you know of your own knowledge 
where he res ded? A. I r.ever had occ siou to 
know anything of his personal habits until the 
business of which I have spoUen. Then I 
learned that he resided in the country. 

Q. How often did you see him in July? A. I 
have no recollection of seeing him about that 
time. 

Q. In June? A . I have no recollection. 

Q. In May, 186(5? A. I recollect nothing 
whatever as to seeing him at that time. 

Q Then you don't know anj'thing ai>out his 
habits during tnespring and summer otlSeO? A. 
I do not. 

Q. You said that Judge Frazier was a Union 
man? A. 1 so heard 

Q. Was he friemlly or iinfriendly to the Leg- 
islature that was sitting? A. I do i ot know, 
sir, how that was. 

Q. ^^ hat was his reputation on the sitbject? 
Was he a Kadical? A. I cannot teli, sir. 

i}. What was his character and reputation in 
the community — 1 mean as to whether he M'as a 



Radical or friendly or unfriendly to the Legisla- 
ture? A. I can only say that hisreputatioii was 
that of a conservative Radical, if I may use tlie 
exiu-ession. I hardly know whit that means. 

Q. A conservative Radical? You don't know, 
then, what his reputaiion was as a friend or an 
enemy of the Legislature? A. I had no ron- 
versation with ai yljo'lv on that subject. 

Q. How many cases have you seen him try 
on the bench ? A. Mone, sir. 

Q. Never saw him try a case? A. I have been 
in his court for a few mo^rents when I wanted 
to see him. I never went there excepton busi- 
ness, which probably detained me for a few 
moments. 

Q. Do you know what Judge Frazier's habits 
as a citizen weie, whether he mingled freely 
with the community or lived a reserved and 
student lile, away from the body of the com- 
munity? A. I think he lived raih-r a re-i ived 
life, and did not mingle mrich with the cmimu- 
nity. Thit is howeveir, only my impression. 

Q. Wliat. was the general pervading spint at 
that time toward the Legislature here. Was 
there any excitement in the city? 

Mr. Ewing— That is an original examina- 
tion. 

Mr Trimble — Well, I don't know that it is 
material. I will not press it. 

TESTIMONY OF HORACE H. IIARRTSON. 
The Hon. Horace H. Harrison, Chancellor, 
etc., was next called on the part of the State 
and sworn. 

Question by Mr. Trimble— Were you, in July, 
1866, much about the Capitol? A. No, sir. 

Q. In July, 1868, you were emvdoyed to take 
part in this proceeding before Judgr- Fr.izier, 
on the halieas corpus trial? A. Yes, sir; I 
think it was m July, 1866. I don't recolltct pre- 
cisely the date. 

Q. Do you remember when the Legislature 
assembled? A. No, sir; I do not. 

Q. Do you remember when you were employ- 
ed to appear in the case? A. I was spoken to 
on the very morning, I believe, that tue wilt of 
habeas corjius was sued out. 

Q. Do you know the date of it? A. No, 
sir. 

Q. The date is the 16th of July. It is in proof 
h( re. You were employed the morning it was 
sued out? A. I think ic was on the morning it 
was sntd out. 

Q. And of coursp you took the proper rteps 
to acquaint yourself with the facts ot the case 
immediately? A. Yes, sir. 

Q. You say you took immediate steps to make 
yourself master of the facts in the case? A. 
Yes. sir. 

Q. What steps did you take? A. I examined 
the writ and the other papers connected with it, 
and the proceedings which had been male in 
th ■ Legislatue, and also proceeded to acquainc 
m.\ self as well as I coulo M'itli the questions 
which would very naturally com« up. 

Q. You were eniplo3'ed, you say, the morning 
the writ was sued out? That was the 16th. At 
what hour were you employed? A. I ion't 
recollect pre:'.i>ely, but 1 recollect that ii was 
only a short time .'tfter. 

Q. Hadn't th re been an oi-der for a return to 
the writ at n»ne o'clock oa the 16th? A. i dont 
recollect the dat-s. 

Q. When WHS the return made? Wasn't it 
before you were emp'oyed? A. Y'es, sir. I pro- 
ceeded very soon after I was employed to the 
court house, first having sent Mr. < avoy, a 
young man who was assisiii;g me in the o ce, 
to take v\' hate ver steps, were necessary until I 
could get over tncre as I was desirous ot ex- 
amining some authorities. 

Q. Vou regarded It as a question of great 
magnitude? A. I did. 

Q. Worthy of the closest examination and 
investigation as rf'garded the inuependci ce of 



77 



the Honse of Representatives? A. I regarded 
it in that wav. 

Q. The riffhts of the House of Representa- 
tivt.;s and tlie rights of the goverDment ? A. 
Yes, sir, as well as the rights of the party 
brought be I ore the court 

Q. You say you went to the court house 
yourself after you sent Mr. Carey tbei-e. What 
did you send him there for? A. I sent him 
there that he might sen to the case. I sug- 
gested to him to endeavor to get it postponed. 

Q To what time? A. I dou't recollect; I 
think probably until the next morning at 9 
o'clock. 

Q Did he succeed? A. I don't know; lam 
not aivised of my own knowledge wh.<it he did, 
exceut that when I got to the court house I 
found him there. He had made some remarks 
to the court and taken whatever steps he could 
take in the matter. 

Q. Then \ou addressed the court for a con- 
tinuance, or at least asked for a coniinuance? 
A. That is my rccolltction. 

Q. Until the next morning? Was thatrpquest 
granted by the Jud^e? A.I think not. I think 
he immediately went into the consideration of 
the case. 

Q. Did y "111 pr'^sent yourself as counsel for 
the House of Representatives, and announce the 
fact? A. Yes. sir. 

Q What time did the discussion commence, 
do you remtmiier? A. I think it was in the af- 
ternoon about 2 o'clock. 

Q. Then it was laid over from 9 o'clock until 
2 o'clock? A. Yes, sir. 

Q. Who else was employed in the case, do you 
remember? A. Ko one, except Mr. Trim- 
ble. 

Q. Do ynu know when he wa? employed? A. 
I think about the same time that I was. 

Q. Have you any impression at all on the 
subject? ' . I th nk it was when I met yen and 
was in consultation in regard to some au- 
thorities. 

Q. Do \ou remember what day that was 
when 1 met you? Didn't I come ont of the Sen- 
ate about 12 or 1 o'clock thai day? A. I think 
it was in the afternoon when I met yoii. 

Q. Had I time to examine the question? A. 
No, sir. 

Q. The argumentcommenced then at 2 o'clock 
of the day on which the writ was issued? A. 
Th.at is my recollection. 

Q. Whoargued it that evening? A. I think 
Judge Gaut and Mr. Colyar. 

Q. You opened th ' case, I believe? A. Yes, 
sir. I made the first sneech. 

Q. Were you satisfied with the time you had 
to investigate the case? A. No, sir, I was 
not. 

Q. Was I present and the other counsel when 
the case commenced? A. No, sir, neithtr of us 
■was present. 

Q I mean at 2 o'clock? A. I think you were 
there in the aflei'noon. 

Q. Well, you made the opening siieech? A. 
Yes, sir. 

Q. Judge Gaut and Mr. Colyar, I believe, fol- 
lowed? A. Yes. sir. 

Q. Whr.t time did Judge Gaut close his argu- 
ment? A. I think it was rather late, about 5 or 
6 o'clock. 

Q. Then my turn came to address the court? 
A. I think so. 

Q. Do yon remember the remarks I made to 
the court then? A. Nothing, exceiJt the sub- 
stance ol ttjem. You urged a postponement, 
and Judge Brien in reply remarked that he 
was toleave either with his family or with some 
friends that night or the nexi morning, but that 
he was so anxious to have the case procci ded 
with that he would remain, and it w'as finally 
arranged to adjourn until the next morning at 
9 o'clock. 

Q. Do you remember the substance of the 
statement I made to the court? A.I recollect 



that you urged the postponement of the mat- 
ter, and the importance of preparation and 
thought. 

Q. Do you remember that I came out of the 
Senate at 1 o'clock. A. I recollect that. Atany 
rate, I recollect that you stated to the court — 

Q. You remember that I stattd that I was 
broken down and wearied and exhausted? A. 
Yes, sir, I remember that distinctly. 

Q And staged the magnitude of the question 
involved? A. Yes, sir, that was the suljsiauce. 

Q. And Judge Brien pres;-ed the court to 
press you to speak? A. Well, he pressed the 
court to go on if it toak till midnight. 

Q. And finally they adjourmd over until 
next morning at 9 o'clock? A. I believe until 
that time. 

Q I had then that night only to examine the 
question? A. Yes, sir 

Q. The agument was resumeil next morning 
at 9 o'clock? A. Yes, sir, I think so. 

Q. Was there a large audience at 2 o'clock the 
next day? A. Yes, sir. 

Q. An excited audience? A. They were a 
good deal excited 

Q. What were the manifestat'ons of the au- 
dience? A. I saw no manii'es anions. There 
was perfect order, with the exceiJtionof cheer- 
ing. 

Q. Cheering what? A. They cheered the 
speeches of the counsel for the cb fendant. 

Q. Didn't one of the counsel deny the legal- 
itv and constitutionality of the then exisiing 
Legislature? A. He maile some remarks and 
) ou made some remarks in reply, but i under- 
stood him to disclaim meaning that in so many 
WLirds. 

Q. But didn't he say that distinctly, and 
wasn't it applauded? A. I dou't recollect the 
precise remarks, but I recollect when tue re- 
maik was ma^e in relerence to the matter that 
there was ai^plause, and an intfrruptiou by you 
and a disclaimer on the part of the Judge of 
meaning preciselj^ what you attributed to 
him. 

Q. I irvited a discussion of the question? A. 
i Yes, sir. 

Q. And then the connsel disclaimed it? A. 
Yes, sir. 

Q. And he was cheered by a large, excited 
audience when be did it? A. Yes, sir, there 
was some cheerinar. 

Q. Do you think we had the requ site time to 
investigate the question as it ought to have 
been investigated by counsel? A.^No, sir, I do 
not. 

Q. Papers were read and the petition was 
read, and then the return to it was read. Did 
you help makeupttint return? A. Yes, sir, I 
think I did; I think I wrote it. 

Q. Who acted on the part of the House of 
Representatives with you? A. Before I met 
you I don't recollect any assistance lhad,unless 
the assistance rendered by Mr. Carey. 

Q. Was not Mr. Arnell with you? A. Yes, 
sir. 

Q. That is the point 1 wish to make of those 
members acting on the part of tho House of 
Representj lives didn't exhibit great modera- 
tion and extreme courtesy towafils the Judge? 
A. Yes, sir, there was no discourtesy. 

Q. Didn't you make up a record that was in- 
tended to be studiously courteous and respect- 
ful towards the court? A. Ics, sir. 

Q. Did you not regard it as almost a conde- 
scension on the part of the House of Represen- 
tatives to make such a return ? 

Judge Gaut — The examination is very lead- 
ing. 

Mr. Trimble— He is a very intelligent man. 
He is not to be influrnced by leading questions. 

Judge Gaut— But tue examiuation is exceed- 
ingly leading. 
Mr. Tr mb'.e— Well. I will try to correct it. 
Question by Mr. Trimble— The petition was 
read, and then the return made by the Ser- 



78 



geant-at-Arms was read, furnishing the resolu- 
tion and the Speaker's warrant and other pa- 
pers. A. Yes, sir. 

Q. Didn't we malce the point there that day 
before Judare Frazier that the return itself was 
conclusive in itself? A. Yes, sir 

Q. Was there any proof at all before Judge 
Frazier to show what uumber of members of 
the Legislature were present? A. No, sir. 

CJ. Was there any proof talcen at all as to the 
number of members present? A. No. sir. 

Q. Didn't we except to the statement in the 
petition that it was a quesMon ot law as well us 
of fact, to-wit. that the (larty had sworn that 
there was not a quorum, thus undertakiog to 
decide not only the law but the lact. A. Yes, 
sir. 

Q. Wasn'tthat pont made. A. That point 
was ma'le, and also that the return of the ofli- 
cerwas conclusive. 

Q. And tiiat it was conc'usive in this that it 
estahlished the tact thit there was a quorum? 
A. Well, tiiere was some discussion. 

Q. That was our position? A. Yes, sir. 

Q. Upon that we dwelt, that here 
was the resolution of the Legislature, 
here was the warrant from the Si>eab- 
er, here was the action of the Sergeant- 
at-Arms of the House of Representatives, and 
there was no proof ofl'ered whatever as to the 
number of members present, or th it there was 
not a quorum there? Did not the Judge decide 
this without any such proof? A. There was no 
proof irtroduced at ad. 

Q The argument was continued. How long 
did it take? A. I think it took some Ihr. e 
hours to make Judge Jirien 's speech and your 
own. 

Q. Was there a large, excited crowd there 
the secocd day? A. Yes, sir, quite a large 
crowd. 

Q. Occasional bursts of applause? A. Y'^es, 
sir. 

Q. What brought out those outbursts of ap- 
plause? A. The result of the feeling ot tlie 
crowd, a large majority of wliom were evident- 
ly on the side of the parties who liad asked for 
the writ of habeas corpus. 

Q. Was there a single burst of applause dur- 
ing the arguments made by thee imsei on the 
part of the Legislature? A. No, sir, there was 
very marked attention. 

Q. Very respectful attention? A. Very re- 
spectful attention, but no applause. 

Q. When did the Judge decide the case? A. 
He adjourned the maiter. I don't recollect the 
day 01 the week on which tlie question was dis- 
cussed before his honor, but it whs a day or two 
after that, iwo or three days, I thinh. on Friday. 

Q. Were you prestut when hedeliveted his 
opinion? A. I was not. 

Q. Do you kuow wiiat fallowed on his deliv- 
ering his opinion? A. No, sir, 

Q. You were not pi-eseut? A. No, sir. 

(.}. Do you know that a process was put by 
him into the hands of the Sherifl' ? A. No, sir; I 
do not know anything of the facts. 

Q. Know anythiiiic ol the Sherifl coming to the 
Caidtol? A. Nothing, of my own knowledge. 

Q. Do vou kuow anything elsein reference to 
this matter which you deem material? A. No sir, 
I cannot say tiiat I do. I know t irat I regarded 
it as a case of very great moment. 

(J. Were you satisfied as counsel for the House 
of Representatives with the time that was 
spent or given in pri-paring the argument in 
the case? A. No, sir, Idou'tthink there was 
time enough given; at least, that was my opin- 
ion about it at the time I nean by that, that 
there was not time enough given to examine 
closely thequestions o*' .aw be'irmg upon the 
particular case; believing, as I did, that it was 
a case ot importance. 

Q. I will ask you further. Judge Harrison, if 
the counsel for the House of Representatives 
did not distinctly place before Judge Frazier 



the point that these two departments of the 
governmeut were co-ordinate and independent 
of each ottier, and if he was not addresssd di- 
rectly and emphati ally upon the point ot the 
necessity of each one of these departments, ob- 
serving towards the other the most respectful 
deference and courtesy? A. That was a part 
ot the line ot my argument and of your own, 
and we dwelt at some length upon this point. 

Q. Was not the case directly made before 
Judge Frazier that this woild necessarily re- 
sult in a codision between the two branches of 
the government? A. The danger of collision 
was ot course deduced from the facts stated. 

Q. Wasn't this argument in\t to him: if your 
Clerk or Sherifl" was guilty of misconduct or 
contempt and you had him in possession for 
contempt of court, and some olllrious friend 
were to slip around to Judge Lea, the Judge ot 
the Circuit Court, and obtain from Judge Lea a 
writ of habeas corpus, an 1 he should rommand 
that a return should b ; made to it and i,hat that 
Clerk or officer or Sheritf should be bro'ight 
b fore him. what he would do under those cir- 
cumstances? A. The danger of a collisiou was 
dwelt on at cousiaerable length. 

Q That question was squirely and fairly 
brought bef 're him? A. Yis, sir. I mean by 
that tliat there was danger of a collision grow- 
ing out (if cases of that kind when tlie judiciary 
sought to interfere We so contended. 

Q Didn't you produce the case for instance 
that occurred in the JtJritish Parliament ? A. 
Yes, sir. 

Q Of a man who was |brought before thut 
bo jy for contempt and other causes ? A. les, 
sir. We cited several authoritus, and that 
amon^ the rest. 

Q. Did you not cite an authority before Judge 
Fr.izier which showed that a member of the 
House of Commons of Great Britain was not 
taken possession oC until notice wa-) given to 
the House ? A. Well, we read him that case, 
what ver it shows. 1 don't recollect it min- 
utely now. 

Q. Well, all that could bo brought before him 
as to the rights and privileges of ihe House was 
submitted? A. We presented the case as well 
as we could with the time we ha 1 lor iirepara- 
tion. .'!i.nd I thought we presented it very fully. 

Q. Then the thing was squarely before him? 
A. Yes, sir. I think all the questions so far as 
we could present them, were belore him, that 
is, considering the short time we had to pre- 
pare. 

Q. Do you think he sat with that reserve and 
deliberation and moderation and sell-control 
that ought to have characterized a judicial olli- 
ccr sitting upon such a question as that? A. 
The principal objection I had was to h s taidng 
up the case as early as he did ; bnt his manner 
on the bench was unexceptionable. Possibly, 
h ". ouEcht to have flnei some of the parties for 
the enthusiasm they mani rested, but so far as his 
personal manner was concerned I don't kuow 
that it was exceptionable. 

Q. Didn't Judge Frazier so far as his counte- 
nance coul 1 express it, participate in the teeliug 
in some degree? A. In spite of himself he 
might have felt the inlluence exerted by the 
crowd, nearly a 1 of whom were one way, for I 
felt it myself; but I cannot say that his manner 
indicated any feeling or any unfairness. 

Q. Didn't the whole occasion warn him as a 
judicial 'dlicer to sic liia;h and calm above the 
storm? A. Wed, sir, if I were to give an opin- 
ion I should say it did. 

Q. The greater the storm, the calmer the 
Judge. Was the case of Judge Marshall, pre- 
siding at Richmond, presented to Judge Kra- 
zier as an example or not? A. I don't recollect. 
You may have referred to it. 1 did not allude 
to t. 

Q. Judge Harrison, do you know anything 
furtlier tuat is material in this case? A. Noth- 



79 



iug, sir, that I know of. The crowd was quite 
exciied. 

Q. I will ask yon whether there was or was 
not the same spirit of excittmeut against the 
Legislature pervading a large portion of the 
coniinunity? A. Yes, sir, there was a good deal 
of it. 

Q. Was not the feeling against the Leg'sla- 
ture rising, and didn't the 'eaders become bold- 
er and boider in thiir attempts to break up the 
Legislature? A. I think that, under the infln- 
eme of leading editorials in nearly all of the 
newspapers of Nashville, and it may bounder 
other influences, that the feeling u'gainst tlie 
Legislature was at a very high point, especially 
.liter the wi! hdraM'alof some ot the members of 
the Legislature. 

Q niidn't it threaten to burst out? A. 1 think 
that the majority of the conrauiiity were rath- 
er disposed, so far as they made any manile^ta- 
tion, to be on the siile o! the members who had 
withdrawn from the Legislature. 

Q What silenced that spirit, i'r you know? 
Didn't yon hear it roar and thunder in the 
Northwest? A. Iprefet' to answer a more di- 
rect question. 

Q. Dirin't the result of the elections in the 
fall settle and qu'et thit spirit? A. I think 
they had a great tendency to sett e it. 
Q Salutaiy? A. Yes, sir, I so regarded it. 
Q. In your interi-.ourse with the mtmbers of 
the House who were assisting in the prepara- 
tion of that record to be p esented to Judge 
Frazier. did you ever witness a spirit of m Jie 
courtesy and moderation? A.I think there 
Avas great courtesy shown in it. 

Q. Do you remember the consideration of the 
question as to whether the House would not ar- 
rest Judge Frazier and bring him to its bar? 
A. I was called upon on one occasion, at the 
reouestof a committee of the House, to meet 
some other gentlemen to investigate the que-- 
tion as to what the H(.use of Representmives 
should do in the dse after ihe writ had been 
i-sued, and after the arrest ot the Sergeant-at- 
Arms, anit after tlie decision of Judge frazier 
had heengiven. I spent almost the entire night 
looking into the qu. stion, and what I did, or 
what conclusion 1 came to, may be foundinthe 
report of the committee. 

Q. Well, the members of the House did not 
ta-e any such step? A. No, sir, the committee 
who had been charged with the matter, .>aid, 
when we came into tlie committee room, that 
they wanted us to examine this question, and 
seeVhat were the privileges of the House ot 
Keprtsentaiives, and ascertain whether those 
privileges had been violated. 

Q. Didn't they deeply deprecate the conflict 
they Saw arising ? A. I heard no particular 
expressionof deprecation of the conilLcc, but I 
know that there was a good deal of earne>t 
teeling concerning it, anu a ve.ry great oesire 
on the part of the Legislature, th^t this co.i- 
flict should be avoided; or lU oiher words, that 
there was a pretty general determination to 
stand up for whai. were regarded as the riglits 
of the House, and a desire that Judge Frazier 
should take the same view of it, and that the 
case should be de.ided m accordance with the 
view of the Hous" concerning what were the 
privileges of the House. 

Q. It Judge Frazier had been arrested 
would it not in ali probability have led to 
bloodshed? A. I think there would have betn 
quite a serious conllict, as there was an excited 
state of the public mind. 

Q. What was the spirit and tone of the pa- 
pers here and the public prints? Did they 
pander to this spirit in the community or not? 
A. Y'es, sir. 

Q. How many of them? A. Well, there was 
some two, and possibly three. I believed at the 
time that this contributed very largely to the 
feeling which existed in the public mind. 
Q. The papers were issued daily? A. Y'es. 



Q. And had a large circtilation in the city* 
A. Yes, sir. 

Q. Bo you know whether Judge Frazier took 
the papers or not? a. I do not. 

Q. Well, they were generally read? A. Yes, 
sir; about the city here the papers were gener- 
ally read. 

Q. There was bnt one paper here that rebuked 
that spirit? A. It may be that there were two. 
Tliere was a Germau paper in addition to the 
Press and Times that rebuked it. 

il Thatpaper was published in the German 
language, and not readable by ninety-five 
huu iredths of the people? A. Well, very few 
Americans can read it. 
Q. Y'ou saw it every day? A. Which? 
Q The German paper. A. No, sir, I ould 
not read it very readily. But I saw it at your 
ofliceand oora-jionally pickea it up. 

Q. Did :y on read it? A. No, sir, I could not 
say that I diil. for I c^uld not rend it with any 
pleasure, as I did not understand the German 
anguage well enough to read it readily. 

ii VVus not there a prepared opinion of the 
counsel lor the Legislature that was published? 
A. Yes, sir. 

Q. Y'ou were one of the counsel, I think ? A. 
Y'es, sir. 

Q. Was not that opinion denounced by the 
papers? A. Y'es, sir, there was a good deal of 
criticism, particularly on the— 

Q. Do you mean fair, candid criticism, free 
trom passion? A. No, sir, I thought there was 
some passion and a gieit deal of prejudice in 
it. However, I may have been a very interest- 
ed party. I recollect that I was charged at the 
time, by the lianner, with taking the money 
belonging to the poor widows of the Stats on 
account of a tee which the Legislature had al- 
lowed me, without any request on my part; 
and they commented upon it in that spirit, and 
spoke of it as a hundred dollars worth of legal 
stupidity. 

Q. Was not the result of this talk and the 
comments in tlie newsitapers almost calculated 
to destroy the idea of the legality and constitu- 
tionality of, the Leifislature? A. Y'es, sir , that 
was I he tendency of it. The papers were deal- 
ing in abuse of the Legislature, and speaking 
of it as a body which had no right to do any- 
thing as a Legislature 

Q. Well, was it not by the firmness of the 
Legislature that they can.e to respect the ac- 
tion of the General Assembly? A I am of the 
opinion, if my opinion is called for. (don't 
know that it is competent), thiit the firmness 
manilested by a majority of the I egislature 
vintlicated their claims to legality so far as 
that claim had been attacked in the newspa- 
pers and by the leaders of the opposition. 

Q. Were they not brought at la t to respect and 
recognize the Legislature? A. It had that ten- 
dency, and that feeling increased, I thiuK 

Q. The country was saved from anarchy? A I 
don't know that there was a condition of anar- 
chy. 

Q. I say, saved trom anarchy? A. It nad 
thatefl'ect. of vindicating the claim of the Legis- 
lature to sit as a Legislature, and It went iu 
the directie>n--the course pursued by the ma- 
jority of tr.e Legislature, the firm course they 
pnr.sued, wenr in the direction— of settling the 
public mind upon that subject, and in that re- 
^l-ectit may have prevented anarchy. 

y. It' the Legislature had not acted with (hat 
moderation and firmness, what would have been 
the result on the community? A. I cannot tell 
what would have been the result. 

Q, It the Legislature had acted in the spirit 
'which characterized the papers and permeated 
the community, what would have been the re- 
sult? A. I thiuk there would have been a gen- 
eral breaking up ot the idea ofrecognizing the 
Legislature as the body that had assembled tin- 
der the constitution, empowered with whatever 
there was of legislative power vested by the 



80 



con'^titntion in that department of the govern- 
ment. I bflieve that if the spirit of tlie press 
and the leadeisof the opposition had pievdled 
it would have broken up everytliing. I believe 
it would have resulted possibly in aaarehy and 
confusion. 

Q. Violence and bloodshed? A. It may have 
done it. 

Q. Wei-e you about the Legislature any? A. 
Very seldom. 

Q. Did its conduct strike you as moderate 
and firm? A. It struck me as veiy radical, and 
very firm. 

Q. That is, it struck you that there were cer- 
tain id^'as to be carried out for the good of the 
country, and which they carried out? A. It 
STuck me that there Avere certain ideas thattlie 
majority of the Legislature h d, which al- 
though a majority of the people about here 
were oppo-sed to, the Legislature were still (le- 
termiued to assert and firmly hold to. I can- 
not say there was so much of moderation in 
the thing as of radicalism. 

Q. Was not that salutary upon the commu- 
nity? A. In my opinion it was. 

Q. Were there any violent resolutions adopt- 
ed by either branch of the Assembly at that 
time? A. My atteutiou was not caled to any 
particular resolutions. I was seldom a'^out 
either House of tiie LegisLtture. I recollect 
distinctly that the resolution adopted ac the 
time the return was ma le to this writ of habeas 
corpus was, as it will show, exceedingly cour- 
teous. 

Q. Do you know whether anything was left 
undone that could have been done to avoid the 
conflict? A. >o, sir; I think the case and allot 
the (juestions connectid with it were as fudy 
discussed as the particular counsel who were 
employed could discuss it, within the time 
given. 

Q. Ispeakof the House of Representatives? A. 
What is the question? 

Q. If th. re was anythine left undone to pre- 
vent the conflict? a. Nothing that I remem- 
ter. 

Q. It was wholly marked by courte-y and 
moderation, but firmness? A. 1 think that was 
the case. 

Q. Was t'lat not uncommon for a popular 
bO'.iy, Judtce Harrison? A. 1 w-is inc ined to 
thmk. with reference to that particular case, es- 
pecially as to the arnst of the Sergeant-at- 
Arms, that the proce<^diugs of the body were 
mai'ked with moderation. 

Q Was there any reason given on that trial 
■why the members themselves were iiot arrested 
as ihe chief actors? A. I do uot recollect that 
there was. 

Q. She man that was arr. sted was the Ser- 
geaut-at-Arms? A. Yes, sir. 
Q. A humble German? A. Yes, sir. 
tj. A mere instrument of the House of Repre- 
sentatives? A.. He was an oflicer of the House 
of Representatives, and apijointed by the 
House. 

CrossSxaminaUon —Question by Judge Bri- 
en— Judge Harrison, I will ask you when you 
first came to the court house, if you had not 
at that time the nnswer to the writ prepared, 
and whether you did not offer it noon your an- 
swer at the court house, or soon" ttiereafter? 
A. ies, sir, I think that very soon after I got 
there. 

Q I understand you to say that it was pre- 
pared m consultat'on AVitn the members of the 
House of Representatives? A. Mr. Arnell, and 
it mav be other m-mbers, I don't recollect now, 
were" present, either at the time I drew it or 
vory shortly before it was drawn. I think it was 
in my own hand writing, or I either drew it 
or dictated it. 

il I will ask ynu this. Judge Harrison, wheth- 
er or not a resolution was not passed in the 
House before the answer was made, as to what 
the answer should be? A. Some action, I think, 



was immediately taken by thfs House, or very 
shortly afier tlie writ of habeis corpus was 
sued out, and if I mistake not, the resolution 
of the House of Representatives or its sub- 
stance was embodied in the returii. 

Q. I will ask you to remember whether or 
not, in point of fact, you made any application 
for a continuance of the case oa the morning 
that you came in? and by way of getiiut? at 
that, I will ask you whether Mr Carey's appli- 
cation to the Judge was not simply to postpone 
the case until you cou d be in court? A . When 
I answered the question I was note.\actly clear 
as to that. I recollect very distinctly, however, 
that Mr. Carey was sent over tiiere at mv in- 
stance in advance of my going there. I think 
it m^st likely that the reason why he wer, t over 
there in advance was that 1 was prcpiiving the 
return, and 1 wanted him to go there and get a 
potsponemeutot the case. I do not know what 
occurred, except what Mr. Carey told me, that 
he went over there and made that aiiplication 
(or a postponement. Whether i made thi; di- 
rect application to Juge ITrazier for a poitpone- 
meiit when I got thei'e or not i don't recollect. 
1 think it mo.-t likely when I got tnere that, af- 
ter consultation with Mr. Carey, he proceeded 
with the case. 

Q. Ind you not apply to the Judge to post- 
pone the case until the atternoon , and was the 
case not postponed, but taken up at 2 o'clock in 
the afternoon of that same day? A. I recollect 
the case was taken vip about 3 o'clock in the 
atternoon, and I think it most likely that ttie 
case W'as po-tponed in the morning until 2 
o'clock, either at my request or at the request 
o'' Mr. Carey; but I don't know positively how 
that is. 1 re ollect this distinctly, however, 
that Mr. Carey was requested, when ne went 
over to the court house, to piocure, if possible, 
a uostponemeut of the case until we could look 
at some authorities and get ready to piepare 
the i-eturn to the writ of habeas corpus 

Q. I will ask you. Judge Harrison, to state 
whether any application for a further cnutinu- 
ance was made in the' case, except to postpone 
it from the morning until 2 o'clock, and in the 
afternoon of that day to postpone it until the 
next morning — except at the instance of Mr. 
Trimble, who saul he was so exhausted that he 
could not proceed with the argument then? A. 
I don't knovv precisely what application Mr. 
Carey made. There was an application made 
by him, as I uiiilerstand, and as I instructed 
him or reque-ted hiiii. for a postponement; 
and then, late in the afti^rnoon, Mr. Trimble 
urged upon the court a further postpouement 
of the ai'gument of the question. 

ti- 1 Will ask you. Judge Harrison, whether 
the necessity lor Mr. Trimble urging that was 
uot on account of my opposition to it, and not 
oa account of any manitestation or (lisposition 
on the part of Judge Frazier? I will ask you 
also whether 1 did not state that I had already 
made arraniren.ents to go, with a i)art of my 
family, on the mori-ing train to Louisville, and 
wanted to get through; and if it was not at my 
instance that th's was urged and not at the in- 
sta. re of the Judge? A. Mr. Trimb e stated 
that he was a good iieal exhausted, and I think 
he urged the importance ot taking time in the 
matt r, and I think that you. in answer lo that, 
made some statement about your arrangements 
having In en made to go olf on tlie train, but 
that you staled that the rights of a citizi'n were 
iin[)eriled— that you would stay there until 
midnight to get through. That is about all I 
recollect. 

Q.l ask you Judge Harrison, whether Mr. Trim- 
b e did not state distinctly to the Judge at the 
time that he was so exhausted that he was not 
prepared to argue it, that it was purely a legal 
question, and that he would be pruparea to 
proceed in the morning? A. I recollect his stat- 
ing that he had been engaged in the Senate and 
was wearied and exhaustad, or at any rate he 



81 



urged the importance of postponinar it. There 
seemed to be a disposition on the part of the 
counsel on the other side, or at any rate on the 
part of Juilge Brien, to proceed with the case 
even after a late hour, and Mr. Trimble urged 
the postponement of the case or the hohlingof 
it over. I think that after hearing what was 
said by the counsel on botli sides, Mr. Trimble 
nrging the postponement of thecase.fand Judge 
Brien urging the importance of going oi; and 
that Judge Fr:izier adjourned the. case until 9 
o'clock the next morning. 

(J. Well, after I had stated all my objections to 
the continuance of it, nevertheless Judge Fra- 
zier did determine that it should he adjourned 
at the instance of Judge Trimble ? A. Yes, 
sir. 

Q. I ask this, whether th^re were but two 
questions involved in the writ of habeas cor- 
pus, one of which was that these parties were 
illegally detained in custody because there was 
no quorum of the Legislature; if that wasn't 
one point and the main point, ami whether 
another point mide and the only other, not as 
members of the House ot Representatives, they 
were free from arrest and could not be arrest- 
ed and held in cu-tody? A. The main ques- 
tion in the case as I understood it, wa- that the 
rarty was illegally held in custody; that w.ts 
the general, formal allegation in the writ The 
main question in the case was to whether 
the House of Repres .etatives had been author- 
ized by law to compel the attendance of its 
members, and the discussion turned a good deal 
upon the question as to whether ihe provision 
in the constitution and in the rules which the 
House of Representatives had adopted, there 
was authority to compel the attendance of its 
members. The point, however, was niide that 
there was not a majority, or not the required 
number of two-thirds; that the two tliirds were 
not present and that tney could not compel the 
attendance of its members. In other words, 
the argument was made that these men who 
were iu confinement in the commiHee room, 
were not on the floor ol the House and did not 
constitute a part of the House, and that ?s 
there were less than two-thirds of the members 
present, the Legislature could not compid tlieir 
attendance. The main quest'on, as lie regarded 
it, was whether there could be any Interieence 
by tue Judicial Department witn the legisla- 
tive in that particular case. 

Q. Judge Harrison, 1 will ask von whether in 
the consideration of the question presented be- 
lore the .Judge in the habeas corpus case it wns 
not insisted by the counsel for the petitioner 
that the Legislature was not competent to do 
any business unless there was a quorum of two- 
tmrds present, and whether these proeeedirgs 
were not ilie>; al? A. Yes, sir, that point was 
made. 

Q. Were not the journals produced there 
showing the action of the Legislature from 
time to time, and showing that there were not 
in point of fact two-thirds oi the memliers pres- 
ent, excluding Williams and Martin? A. I 
don't know that there were any journals. 

Mr. Trimb e— They were not then pub- 
lished. 

Question by Judge Bnen — Was not the report 
contained in the Press and Times read? A. I 
don't know about the Press ANn Times. I 
know that some extracts were read from the 
newspapers. 

Question by Mr. Trimble — "Were they put in 
pro if? A. Jso, 1 think not. They were only 
read in the argument. 

Question by Judge Brien — Judge Harrison, 
you have seen very often writs of habeas cor- 
pus tried belore? A. Yes, sir, several. 

Q. You have S' en criiidnal trials and other 
public trials. I ask you whether there was 
more manifestation of i'ee'ingiind interest in 
this trial than you have frequently seen in other 
trials before? A. Yes, sir; there was more 

6 



than in most any other trial I ever saw be- 
fore. 

Q. Have you never seen trials where persons 
Wuuld applaud iu court before? A. Never, ex- 
cept that I have heard aptdause at the render- 
ing ot a verdict of not guilty, on several occa- 
sions. I don't recollect that I ever heard ap- 
plause before during the discussion by the ad- 
vocates. 

Q. When these manifestations of which you 
speak to'ik place, did not Judge Frazier rebuke 
them at once, and sa}- that there must be order 
preserved in the court, that this was no politi- 
cal assembly, and that it was purely a legal 
matter to be determined ai'cording to the rules 
of law, and that such tnanife>tations Mouhl not 
be allowed in court? A. Yes, sir; I recollect 
that that remark wa< m^de once or twice. Tlie 
applause, however, countinued afterward. 

CJ. You say that the new -papers upon tlie 
part of those that sided with ihe member- that 
left the Legislature were calculated to excite 
the publi. liiind? A. That was my opinion. 

Q Your opinion of that? A. Yes, sir. 

Q. I ask you Avhether the Press and Times, 
which was advocating the other side, wa^ not 
equally as violent as any other paper in tiie 
State of Tennessee? A.I thought that the 
newspapers on both sides were too intemperate. 
I did not believe that any paper on either side 
was dealing with these questions as the expo- 
nents ot the public sentiment should have dealt 
with them. 

Q. I will ask you to state to the court here, 
when I got up to commence my argument on 
the part of t.ie prisoner there, whether I did 
not state to the court that the gentleman on the 
other side, Mr. Trimble, had made a political 
question of it, that I regarded it simplj* as a 
legal question, and wanted to know from the 
court, whether I must proceed to argue it as a 
legal question, or go into politics ? A. There 
*w as some such reply made. I recollect some 
allusion in the shape of a charge, that Mr. 
Trimble had treated it as a political question. 

Q. I will ask you to state what Judge Fra« 
zier said in response to that remark ? A. Judge 
Krazier said in reply, that it was purely a 
legal question, that politics had nothing to do 
with it, or some remark to that effect. 

(J. But he hoped tliat counsel vrould refrain 
from alluding to anything but the legal ques- 
tions involved in the case? A. That was the 
substance. I don't recollect the isrecise words. 

Q. I will ask you whether or not anything 
that was peculiar, anything that does not ob- 
tain always in legal trials, was exhibited on 
the part ot" Judge Frazier in that trial from be- 
ginning to end? A. Well, sir, there was very 
little in Judge Frazier's manner that I could 
except to I think it would have been b<tter 
under the circumstances if he h. d excluded 
the croAvd from the court room, or fined forty 
or fifty of them. 

Q. You have never seen a public tr'al wdiere 
the citizens were excluded from the court 
room? A. No, sir; but I should have done it 
without hesitation if I could not have repress- 
ed the enthusiasm and the cheering. 

Q. Was it n^t asked on the part of the coun- 
sel f©r the d; fense, on the trial of that habeas 
corpus case, that the crowd and everybody else 
should be still and quiet, and were they not 
discouraged from making any attempts of that 
soit? Was it not stated that this was a ques- 
tion of great importance, a great leading ques- 
tion, an(l were the ixople not requested to keep 
quiet that they might hear? A. Yes, sir, there 
was a good deal of that said. 

Q. How long have you known Judge Fra- 
zier? A. I cannot re^ollei t. I think I have 
known him for about fifteen or twenty years. 
Judge Frazier wa-^ Clerk and Master of the 
Chancery Court at Pikeville, and I saw him 
occasionally ten or fifteen years ago ; I had 
very little acquaintance with him, however, 



82 



and my acquaintance with him has not been 
very intimate since he moved to Davidson 
county. 

Q: I will get yon to state whether, from your 
acquaintance with him and his reputation 
from the day yo\i knrw him up to this time, 
whether it has not been that ot a pure, hone-t, 
conscientious, upright man? A. Yes, sir; I 
think tt)at is his reputation 

Q. Is not his character m thiscity thatof oneof 
the most pure and corre-tlyiuteutioned of any 
of the Judges that preside in tiie courts here? 
Has he not got a peculiar reputation as to ihat? 
A. I can only speak of his general reputation, 
for I have not, since 1859, practced in theGiim- 
iiial Court, and J have never been in the Crim- 
inal Court since Judge Frazier was presiding, 
that 1 recollect. 

tj. I speak of the estimate that people of 
all parties have? A. I think ne is i-egarded in 
the community as an honest, upright uian. 

Q. Do you recollect how lons>- they were en- 
gaged in I he case from beginning to end? A. 
To say nothing about the preliminaries before I 
got there, I think we conimencel about two 
o'clock or shortly aft«r. Tiie remarks I made 
occupied, I suppose, about two hours; possibly, 
not more than one hour and a half. I recollect 
being told aiterward That would bring it to 
about 4 o'clock. I think Mr. Colyar a"d Judje 
Gavit uid not occupy more than one hour or one 
hoiir and a half. I think the court must have 
adjourned about six o.- seven o'clock, and then 
coinmenced again the next morning. I^iy recol- 
lection is not very distinct. It was either nine 
or ten o'clocu , possi»'y ninu, and we got through 
in two or three hours. Then the case was ad- 
journed in order that Judge Frazier, as he pre- 
ferred it, should have more time to deliberate 
on the matier ; and he brought in, two or three 
days afterward, as I understood, a written 
opinion. 

Q Then your recollection is that the case oc-i 
cupied, from beginning to end, some four or 
five days? A. Yes, sir, including the time he 
had it under advisement; possibly, uod more 
than three or four days. 

Q. In your acquaintance with Judge Frazi"r, 
especially since he has been in the city ol Nash- 
ville, have you ever known him to be regarded 
as a partisan, or as taking a part in public 
meetings? A. No, sir ; I tliink he is no; a parti- 
san in his structure. I think he is a quiet, up- 
right man in his character. I think he is not 
inclined to mix wita people a great deal. He is 
certainly not inclined, so far as his character 
has been manife^ted here, and so far as I know, 
to mingle in pal lie assemblies or caucuses. I 
have noi seen a great deal of him, though J have 
frequently met him during the last few years, 
at Mr. spnrlock's oltlce and in other offices. 

Q. In all these interviews did you ever hear 
him mention the subject of politics ? A. I don't 
recollect that I ever did. 

Q. Do you know the fact whether that was 
his reputation or not, that he ■\\ as a tried Union 
man that had stood by the government fiom 
first to last? A. That was my understanding. 
I know nothing of my own knowledge in rela- 
tion to it. The only thing I do know about it is 
that he came down here, and in connection 
with that, I heard that he could not live very 
well where he was, but I don't know how 
that is. 1 

Q. That was his reputation, though ? A. Yes, 
sir, he had the reputation of being a Union man, 
I think. 

Q You said you and Mr. Trimble presented 
the case to the cnirt, with all the authorities 
YOU could procure in the time you had, and 
that you presented the case as fully as >ou were 
ab'e, and that you believed the positions you 
tojk were tenable, and ought to have prevailed? 
A. I did not state that. 

Q. But that IS >our opinion. I ask you now, 
whether, upon the other side, leaving out my- 



self, of course, there were not men of ability, 
who argued their side of the question, and 
whether they are not regarded as men of abili- 
ty in this community ? A. Yes, sir. 

Q. They presented the questions to the Judge 
as earnestly as they were presented on the 
other siae ? A. Yes, sir, there was a good deal 
of earnestness on both sides, with an occasion- 
al anerdote on the other side, which had a .en- 
dency to txiite the applause of the crowd. I 
recollect that Mr. Co yar made reference to a 
Sheriff who was required to empanel a jury. 
The Sherill'saiii that he had eight or (en jurors 
out in the woods, tied with hickory withes, and 
that he had the dogs out after the resf, and 
would soon have a panei. That anecdote ex- 
cited a good deal of laughter. 

Q. Is it not very seldom that this is a good 
way to relieve the monotony of a trial ? A. 
Very seldom. 

Q. So much more pointed when it comes ? 

This question was not answered. 

Q. I ask you t>i state to this court whether it 
is regarded as a crime in this community, un- 
der the laws of the State of Tennesse. with 
whicli you are faciliar, for a Judge to commit 
an error in the determioauoa of a case ? I mean 
to say, of course, without corruption. A. Do 
you mean how the community regarded it ? 

Q. No, sir, I mean wiiat the law is in reference 
to that. Suppose you yourself were on the 
bench to-morrow, and M^ere to pronounce a de- 
cree, and the matter should be appealed to the 
bupreine Court, and the Supreme Court should 
no L. only re veive you, but should say you had 
not taken the first step in the right direction in 
refereace to the Case, would that be any cause 
of complaint against you? A. It would be a 
question between myself and the Supreme 
Court. 

il. Well, the Supreme Court havlag deter- 
mined that, you would be out of the question, 
because their decision ,would govern. A. I 
mean by that (I am only giving an opinion) 
that the case would go up there on appeal or a 
writ of error, and the Supreme Court might not 
only reverse the decree or opinion I had given, 
but al^o proceed to say that tlie position taken 
was not tenable, and that I had not taken a sin- 
gle step, as you tr'rm it, in the right direction. 
The Supreme Court would have the right to say 
that; but it might be a ciiSe where 1 might ap- 
peal, or where any other Judge might appeal 
to the intelUifence and coinpreheusi,on of the 
bar, and the judgment might really be in my 
favor. 

Q. But. that is not the point I am after. The 
point is this, whether it would be regarded by 
the Supreme Court, or by the community, as a 
crime in you, simply bec:uise yoti may have 
committed an error in law? A. Certainly, an er- 
ror in theconstuiction of the law might not be 
a crime. 

Q. I nee \ not ask you the fa t, biit y on are the 
witness, and the court will hear testimony, 
whether there is anytijing more common than 
for Judges ot the Supreme Court to roveise the 
decision of inferior courts at every term? A. 
Yes, sir, that is very common. 

i). I ask you whether, under our laws in the 
State of Tennessee, and the adjudicat.ous of the 
courts, the question of the power of the fjCgis- 
lature to pass a particular statute has not been 
frequen Iv m review brought before the Su- 
iireaeCiUrts of the State of Tennessee? A. 
Yes, sir, in a case where the constitutionality 
of tin act is involved, of course you may, in 
many instances, pass upon it. 

yuestiou by Mr. Trimble— State how that 
arises, if you are willing. 

Judge IJrien— Tiiat arises when there has been 
a difference between the parties in reference to 
suits of a personal characier, or suits involving 
personal liberties. Those cases have all occur- 
red in the btate of Tennessee. I call to your 
mind now the act of 1811, which was passed in 



83 



that year, to give the right of way to a person 
through his neighbor's lield, and ^s•hether that 
did not stand, aiid whecher it was not recog- 
nized as a part of the law of the State, nntil lSo4 
or 1853, when it was called in question bv a man 
by the name of White, from Giles county, v ho 
was considered a crazy man, who brought it to 
the Supreme Court, and whether they vtid not 
declare the act of 1811 uno.onstifutonal. 

Mr. Trimble— Oh, we admit that, without any 
examination of the witness. 

Answer b/ Jud\'e Harrison — In a suit involv- 
ing the rights of diflerent parties, whatever 
tlie qiie.-tion in regard to the jurisdiction 
mieht have I een, the Suprrme Court will de- 
cide in a particular case, whether the law is 
constitutional or whether the I-cgislature had 
the power to pass the particul-.o- law. The 
ffieat dilliculty resulting from these questions 
lie in the nice distinction between deciding a 
law robe unconstitutional on account of the 
Legislature not having the power to jjass it and 
the decision of a question which involves the 
validity of acts of a Legislature a« a body con- 
stituting the legibl tive department of the 
government. 

Q. Now, -Tudge Harrison, that brings me right 
to Che point, in regard to determining whtther 
a law i)asseii by the Legislature is unconstitu 
tional or not. There are manv ingredienis that 
will enter into the investigation The first is, 
they may inquire as to whether it was a proper 
Legislature Of course a Legislature in Ken- 
tucky could not passa law in Tennessee; and it 
is a question involving the organization 
of the Legislature that may be 
inquired into by the Supreme Con- 1 or any oth- 
er court. A. There seems to be rather an open 
question as to wh.ther the courts can look to 
auv thin:? l^eyond or behind the journals of the 
I egii-lature. Thpre are a good many iiuthori- 
ties of a good deal ot weignt, as we had occa- 
sion to fliid in the examinationof the Mefropol- 
i an Police bill. wl:en it was argued before the 
former Chancellor— a good many authorities in 
favor of the position that you may go behind 
the journals. I was of theopinion in the i x im- 
inatiou of that case, however, tliat the weight 
of authority was the other way. I will remark 
to the court that I would prefer not to give any- 
thing like alegil opinion in this off hand way. 

Q. I wanted to know whethpr the court could 
inquire into and determine whi-ther the Legis- 
lature had been properly constituted or iiot, 
wh-'ther that was a debatable question in this 
country? 

iVlr. 'i'rimble— It is a question of constitu- 
tionality when it is properly made. 

Answer by Judge Harrison— I say that the 
question oftheconstitutionality cf alaw, where 
the que tion comes before a court, as 
it may very properly, where the pow- 
er 01 a Legislature, if you please, to 
pass a law may be considered— which 
question Judge Brien refers to, is an open 
question and a debatable question— this, I say, 
may be a debatable question and not a partic- 
ular question. 

Q. I Will ask vou whether or not in this State the 
Supreme Court of this Slate has not determine i 
that tiiey could not go behind an act of the Leg- 
i4ature. and inquire into the fraudulent pas- 
sage of bills in his State? 

Mr. Trimble— It has heen decided that they 
could not. 

Judge Rrien— You allude to the case of the 
Mine s' and jSIanufacturers' Bank. 

Mr. Trimble— They refused to do that very 
thing. •' 

Question by Judge Brien— I will ask you 
whether, under our laws, and the laws of the 
State of Tennps>ee, under a writ of habeas cor 
pus, when any man is thus restrained of his lib- 
erty, and he st;ites to the court that he is res- 
trained ot hi) liberty, whether it is not the im- 



perative duty of the court to issue the writ of 
habeas corpus? 

A. It is generally settled thnt the writ of 
habeas corpus IS a matter of right; that when- 
ever a party states that he is aggrieved and ille- 
gally restrained of his liherties, he is entitled 
to it. There are, however, many cases in 
which he would not l,e entitPd to it. 
A party would not be entitled under our 
con^titution ana laws of the State of Tennessee 
to the -writ of habeas corpus for a contempt of 
court; that is expressly excluded. The party 
Avould be entitled to t le writ where he was re- 
strained by a warrant, by a ca])ias. or by any 
other impiiscnment not excepted to by the con- 
stitution. 

Q. Then as a matter of right he would 
be entitled to the writ? A. Of course,iinprison- 
ment umier the authority of the Unit( d States 
would be an excepiion un>lerthe right ot a writ 
iss If d by an inferior court. 

Q. Now, when an apidication is made to a 
Jndgp for a writ of h^.bt a« corpus, stating the 
fact that the party is illeg.iUy de ained in 
prison, has the Judge any discretion? is he not 
bound to i-sue the writ? A. It is well settled, 
and has always been conceded that, where a 
man shows that he is illegally restrained of his 
liberty, he is entit'ed to the writ as a matter of 
right, in order to investisrate the question as to 
whether he is illegally restrained of his lib- 
erty. 

ii And the only tbingthatthe Judge can look 
to upon an application of that sort is the fact 
stated ill the pttition of the applicant himself— I 
mean as to granting the writ? A. As a general 
proposition, all he can look to is the stitement 
m tue petition, with refennce to the first order 
to bring him before the court. 

Q. I say, on issuing the writ all he looks to is 
what is stated in the peii i )n, iind then when 
the question comes before him it is treated like 
anythinsrelse? A. He can e tiier try the ques- 
tion, or facts may be developed in a verv eailv 
stage of the trill that would cau e hiin imme- 
diate'}' to dismiss tiie case. 

ti. To be sure, as, for instance, if the party 
had be' n indicted an i was arrested upon a ca- 
pias, as a matter of fact, if certain thing* should 
appear to the Judge he would dismiss the case? 
A. In a variety of cases he would not go into 
the nie»'iis of the case at all. 

Q. In the investigation before the court on the 
trial of tlie habeas carpus case, was it not in- 
sisted as the great argument against holding 
these men there, that there was not a sufficient 
munber present to constitute a quorum under 
the Consttutiou ffthe ."-tate. and that, therefore, 
tbeir action was not proper? A. There was no 
proof to that effect, though it was insisted tip- 
on. My recollection is that the i>ewspaper re- 
ports of the matter— I mean by that the new- 
paper reoort showing as it purported to show, 
the number present— was either read or allu- 
ded to in argument. There was no proof intro- 
duced, no journals introduced, only these allu- 
sions to the .'■tatemenis of the paper. 

Q. D.dn't you insist, and Mr. Trimble, and 
all hands, that the Legislature was comp'ete; 
and the ground upon wnich you predicated 
that was, that they Had the riglit by their rule 
to send for these men, and hi> ving them there 
in custody that that constituted a quorum, and 
that, therefore, their action was complete? On 
the other side, didn't we say that you had no 
right to arres-t them untd there wa- a qnonim 
presr'ut? A. My recollection is that we took 
the position that the Honsi! of Representatives 
had the pov/er under their rule, a rule wnicli 
they hid adopted, which we insisted was a law 
as to them and as to all within the jurisdic- 
tion of the House— we insisted that the House 
of Representa ives had a right to co npel the 
attendance of these men, and that they had a 
right to hoi the n at the bar of the House. 
Q. To arrest them and hold them ? A. It was 



84 



contendefl on the other side that there was not 
a quorum for that puroose, two thirds, I be- 
lieve. I Viiow It was cjiitended iu the argu- 
ment that there was not such a number ))resent 
a> would ju'-tify the action, even ii' ic were au- 
thorized by law, but there was no proof intro- 
duced in regard to it. 

Q. That was the controversy. You insisted 
that the Legislature liai a right, in tlie absence 
or a qiiorum. to arrest their members, and we 
insisied that the Legislature roiild perform no 
such act legally until there was a quorum, and 
that therefor*^ these men were illegally de- 
ta'ued ■? A. That was one ground. 

Q. You have already stated that Judge Fra- 
zier aitjuurned the coiirt ihat he might investi- 
gate that qupsri<m ? A. I said in order that he 
might consider it. 

Q. I will ask you whether he di>in't st^ate that 
ho woitld receive any authorit es or hear any 
suggestions that might be made on the subject 
afterwards '? A. 1 don't recollect that. I ncol- 
lect that about the time the argument was con- 
clnded on (joth sides we presi'nteil or ofl"''.red to 
present him some auihoricies, and among ttie 
rest, the rules of the House, and one or two 
other books. 1 recollect the rules of the liouse. 
and possibly the rules of Congress. 

Q. I ask you if you «lidn't furnish him, after 
the adjournment, with Jeft'ersou's Manual and 
the rules of the House after he nad adjourned 
to consider the ca e '? A. Wha'ever books we 
furnished him on our Side were furiiished right 
thereon the occasion. I recollect tliat I ap- 
proached the bench, about the time the argu- 
ment had closed, and handed Jud=<e Frazier the 
rules of the Hou=e, possibly. 1 don't recollect 
any other authority. 

lie-direct Bxamination..— Question by Mr. 
Trimble— tfe has askeil you about the crowd. 
Was not thi^ bar divided from the audience part 
of the court room ? Yes, s'r, 

Q. Didn't the crowd fill the bar and 
•surround even the Judge himteif? A. 
There was quite; a large crowii, and t^e 
croM-d was nof only behind the bar, which is in 
a semi circular shape, or crescen siiape, but 
they were also to the right and left of the 
Jaench, of tlje platform upon which ttie Judge's 
seat is found, and they were si ting on the 
raised platform. 

Q. Thfionly fact I want to provp is that the 
court pirmitted the crowd to break thronph 
the division that divi'les the audience from the 
bar, and that it rolled and s we lei I in the bar 
itself arouuii the Judj-e ? A. Well, the crowd 
was inside the bar. 
Q. They were not excluded ? A. Ko, sir. 
Q. V'asn'tithot to sufl'ocation ? A. It was 
tolerably warm. I recodect I suflfercd a 
good deal myself. 

Q. I wi-h to prove the fact simply that the 
crowd was permitted t > break tbrough and oc- 
cupy the bar and swell and roar around 
the very bench itself. A. Well, I don't use 
those expressions. I doi^'t know about l>reak- 
ing through. I know that there was a very 
large ci-owd to the right and left of tlie bench. 
Question by Judge (iaut — Will you allow me 
to make a suggestion right tliere? 

JIi-. Trimblt— Well, J aidn't interfere with 
your examination. 

Judge liaut— I was going to ask whether the 
members of the Legislature did not form a part 
of that crowd inside the bar. 
Mr. Trimble— Well, state that. 
Answer by Judge Harrison — I think there 
were some members of the Legislature there. 
There was a very large crowd. Possibly there 
Were lis many insiile of the bar, as you may call 
•it, as there were outside. 1 have no doubt thi;re 
were nearly as many, lor thij disfiosition on the 
part of the crowd was to press toward the bar, 
and 1 think tliat possibly 111' re were as many 
person-: inside the bar as there were outside. 
Q. You have been asked if Judge Frazier was 



not a Union man. and you said that that was his 
reputation? A. Y'es, sir. 

Q. What was his state of mind and animus 
toward the Legislature itself? A. I have no 
persona! knowledge of his state of mind. 

l^ 1 don't wish to make it a political point, 
but that which went to make up Ms character? 
A. I considered at the time — 
Mr. Rwlng— I oijt ct to that. 
Question by Mr. Trimble— I mean his charac- 
ter from repiitaiion — wh it was his status? A. I 
regarded him as what is termed a conservative 
Union man. 
Q. What is that? A. I don't know. 
Q. That is a corporal guard for the Demo- 
cratic party? A. I don't want to express any 
opinion of that kiud. I would be at a loss to 
deflue it. 

Q. Y'ou were asked by Judge Brien as to the 
points made on that trial. I wish to go over 
that again. One of the points was made on 
the lace of the petition itself. Didn't we 
insist tliat the petition itself showed on 
the face of it that these men were mem- 
bers of the General Assembly; that it was 
here in session, and that they were trying to 
coerce thtni into prop'n' and orderly behavior; 
that therefore, from what was stat ;d on the 
very face of the petitiim, he ought not to have 
granted it? A. Yes, sir, that was insisted.' 

Q. Th'.n it being gr.inted next that it might 
be excusable to gi ant the first order in the 
case so as to get a return to it, it being granted 
th.it it might be excused in the Judge until the 
return came in, then when the return came iu, 
made by the Seigeant-at-Arms, showing that 
he was the .'^ergeant-at-Arms; that the 
Legislature was in session, that a resolu- 
tion had been adopt' d, and that the Sergeant- 
at-Arms had made his return, wasn't the 
ground taken that under those circumstances 
he ought to be discharged? A. Y'es, sir. 

Q. AVas not the question made fairly be- 
fore Judge Frazier, that the General As- 
sembly formed a co-ordinate, indeijendent 
part 'of the government, that no court could 
t ike jurisdiciion of the question whether tie' e 
was a quorum or not. upon the ground that 
ei en if the court had juristliction of that ques- 
tion, the Legislature was independent of the 
court? A. Y'es, sir, that was the substance of 
It. 

Q. Well, that was made squarely and, it was 
argued that the Legislature was independent. 
Mow. as to these constitutional questions that 
Judge Brien has asked about, of what classof 
questions t!id the court take cognizance, and 
in what sp'rit did the court approach them? 
\. This is always regarded as a very delicate 
matter. 

Q. Don't such questions arise in this wav? A 
suit is pending which involves the constitu- 
tionality of an act of the Legislature. It is 
produced ind placed before the coi.rt, and then 
the constitution is produced, and they are 
placed Side by side, and it being ascenained 
that they are utterly inconsistent, andthatone 
or the other must prevail, then the Judge is to 
decide according to the constitution and the 
law? A. Y'es, sir. 

Q. Is that not the manner In which con- 
stitutional ques ions arse? A. Y'es, sir. 

Q. Is there any case in this State where any 
Ju ige ever underiook to look into the journals 
of the Legislature, to pronounce on the legal ty 
or validity of the I,eg slature? A. I don't re- 
collect any; I h;;d occasion to examine pretty 
closclv Into the quest on. 

Q. As they have beai examining you on legal 
opinions, 1 will asl< you if a Judge, a uidicial 
ollicer, may take cognizance of the proceetlings 
of a Legis'lutiire and stop them; wtiether the 
Legislature 1 hen has an independent position? 
A. 1 think the interfereuct; of one department 
with another — 
Q. Is not this oneof those questions that ought 



85 



to startle a judicial officer aiul mate him pause 
ami shrink back? A. I Mmik so. Wlien the 
question is ma'le before him, I think he ouglic 
to handle ic in a way that would show his ap- 
preciation of the real rcl ition between the sepa- 
rate ilewariments of the Government, ami Ih.t 
he -h'luld be impressed with the imporranne of 
keeiiiny; these dilTerent dei)artments scparafe. 

t^' That yuecdote that Mr C'olyar tobi, which 
you alluiied to and perhaps told here, was that 
applau'leil? A Very much. 

Q. What was the application? A. The applica- 
tion w;is that he had spouen of two members 
of the Legislature who we e couflned in an ud- 
joiniug room. 

(i. And that the House of Representatives 
wciedoss? A. The anecdote was designed to 
illustrate the manner in whcli they were try- 
iUK to oaioh the other members. 

Q. Was that heartily applauded? A. Very 
heartily. 

Q. T.iere are some questions that a blind man 
could not fail to see in the law? a. Yes sir. I 
suppose a blind man could very readily coni- 
■prehe d the truth of some piopositions In the 
law. 

Q. The question, for inst mce, of interfering 
with an iude|iend?nt and co-oidinat ■ dipart- 
pient— one of those strikingquestions? A. Yes. 
sir. thit is almost self-evident, whure a mm 
has anything like an intelligent cun'eptionof 
the theory of our goverumtut and the peculi- 
arity of the system. 

TESTIMONY OF JAMES C. MARTIX. 

James C. Martin was next called as a wit- 
ness on the part of the State and sworu. 

Question by Judge Patterson.— Mr Martin, 
you will announce your name in full, and place 
of residence? A. James 0. Martin, Bedford 
county. 

Q. Were you in Nashville in July, 1866; and 
if <o, in whit capacit\ ? A. 1 was her' as assist- 
ant Doorkeeper. That was at the extraordi- 
nary session. 

Q. Do you rt collect the date of the month th:it 
yoti reached Nashville? A. The date of the 
month thar 1 got here was the 4th. 

C>. Was there any dilh'.ulty in the organiza- 
tion of the House of Representative ? If so, 
state Avht it was. A. Yes, sir; tlere was some 
diHiciiUy in the organization of it. There were 
a gooil many niemoers thatal^sented themselves 
from the House. 

Q. Who were the leading refractory mem^'ers 
of the Legislature, acting iu disobedience to the 
orders of the House? A Well, sir, tliere Mere 
Mr. Williums, and Mr Martin, and Mr. Dunna- 
way, and Mr. Marable ami otheis whose names 
I don'r, recollect at piesent. 

Q. Had Tou an oppoitunity to know the 
feedng of those members and to asrer ain their 
conduct during the tarly part of that ses-iou? 
A. I had an oi portunity of seeing them. I 
on V saw their conduct. 

Q. 1 wiU ask you whether they had consulta- 
tions within the bar oi the Hou'e, or without 
the liar of ih»! H"U e, with parties not con- 
nected with the Legislature? A Yes, sir, they 
had some consuU^ition wi'h outsiders. 

Q Do you kn iw what the spirit and mind of 
those parties were as to the act on of the i egis- 
Lituri , whettier favorabl • cr uniavorable? A. 
Only by their actions. Their actions showed 
that tliey were unfavorable. 

Q. Had you any cr.nversation with any of 
those retractOi-y member-? A. No, sir, I don't 
thnUI h.id. 

Q. Did yon hear any conversation between 
themir others, 01- among themselves? A. No, 
sir I did not hear any. 

Q If tlieir conduct was peculiaror singular, in 
any respect, sate it. A. Well, they were .just 
going aiound, walking about and consulting, 



sometimes together, and sometimes with others, 
but I never heanl any conversation. 

Q Were there many outsiders— those not con- 
nected with the Legislature— known as lobby- 
ists, in the House during than time? A. Well, 
sir. there w< re a good many, sometimes in the 
lobby, and sometimes in the gal ery. 

Q. Did you know the political status of those 
parties? A. No, sir, 1 did not, for I did not 
know them. 

(J. Were > ou in the House of Representa- 
tives at the time of the release of the two mem- 
bers that werehcl 1 in the custody of the House? 
A. Well, sir, I was in the House, I suipose, 
when they took Martin out of the House. I 
was ash e"p In my room. 

Q. State what occurred then. A. I was in my 
room and asleep when Martin was taken. 
Williams was taken out in the » vening. 

Q. Had you any kuowledfe of the arrest of 
the Serg'jant at-Arms, Mr. Heydt? A. No, sir, 
none. 

Q. Were you in the city during the time the 
investigation before the respondent was going 
on under the writ of habeas corpus? A. Yes, 
sir. 

Q, Were you present in court? A. I was not 
in court but a few minutes. 

Q. What was being done then? A. That was 
abi.ut the time that Mr. Harrison commenced to 
make his sijeech. 

Q. Were you pretty well acquainted in Nash- 
ville at that time? A. >to, sir, I cannotsay that 
I was very well acquainted. 1 hud been about 
Nashville"a yood deal, but I didn't know many 
of them persoQally. I didn't know their names 
or who they were. 

Q. Do you know what the feeling of the ma- 
jority of the, people in the city was in refei ence 
to the proposed action oi the l^egislature? A. 
Wei', sir, in passing around the city I could 
discover that many were opposed to it. I could 
frequently hear insinuations thrown out about 
it. 

Q. State whether the fc ling was strong or 
moderate? A. It was very strong, 

Q Did yourceiveanv communuations about 
that time from Wa hington or from any other 
point? If so state what they were? A. I did 
not myself. 

Q Do you know v* hether the refractory 
members you referred to receive 1 any com- 
munications from Washington City at that 
time? A. Well, sir. I suppose some of them 
did. Bting the Dourkeepei, I haudled the let- 
ters, and sj,w the letiers come. 

Q. How were they postmarked? A. Post- 
marked Washing on, some of them. I knew 
the backing of them, the handwriting. 

Q. If you had any knowledge of the hand- 
writing, state wh< se it was? A. Mr. Cooper's. 
Q. Who was Mr. Cooper? A. He was the mem- 
ber in Congress. He was elected, but had not 
been admiite i at that ume. 

Q. Do \ou know what i osition he was occu- 
l)\ina- in'Washington City at that time? A. My 
understanding Avas that at that time he was the 
President's Piivate Secretary. 

Q. Were ther" any telegraphic dispatches re- 
ceived by tliem? A. Weil, sir, if there was I 
do not know it 

Q. Were sueh letters numerous about that 
time? A. Well, sir, I do not recollect the num- 
ber. There were probably three or four I recol- 
lect. I do not recjliect the number exactly. 

Q. Do you kno^v whether or not there weie 
any political caucu-es heltl in the Capitol or in 
the city, in which the reftMctory men,bers were 
participants? a.No, sir, Ido not know any- 
thing nbout that. 

Qu'Stion bv Mr. Center— Mr. Martin, please 
state to the court who those letters were ad- 
dressed to? A. There was one addj-cssed to 
Mr. DiinEaway, ;.ud iheo.he.s 1 do not recol- 
lect. 



86 



Q. Was lie one of the refiactory members? A. 
Yes. 

Quest on by Judge Patterson— I will nsk you 
wluther those refractory members who were 
present at the time of the opening of the ses- 
sion remained ai their places in the House o^ 
Kejiresentatives, er otherwise, during the day? 
A No, sir. 

Q. Stale whetlier iheir conduct was, as far a? 
vou saw, different from that ordinarily exhib- 
ited and demanded from members"? A. Yes. 
sir, it was diil'eieut from that, for they didnt 
stay in their seats. 

Q I will ask whether they were in the habit 
of leaving theirplaces. when It was probable 
there would be a quorum in the House? A. 
Yes, sir. 

Q. Was there an V difficulty inflrding tbem 
after they would leave their places? A. Yes, 
sir. 

Q. What was that difTiculty ? A. Well. I wa^ 
frequently sent out to hunt them up, and I 
never could cat h ut) with them, never cou d 
find them. I would hear of them, but would 
generally b-; behind them, and con d not get up 
Avith them. 

Q. Ho you know whether thev were in the 
habit of chanpiug their place of boaidins;? A. 
Yes. sir. Mr Jones, of Greene, I th nk, changed 
his boarding house some three or lOur time?. 

Q. Within what engih of time were those 
oh.inges made? A. It was within some seven 
or eight days 

Q I will a^k yea from what you saw and 
knew, whethertnere is any doubt lut that the 
object of those refractory members was to pre - 
venta quorum? A. I have no doubt, sir, that 
that was the oiijrct of their c^ndu'-t. 

Cross -£^xaminatio>i—i.ii\estioa by Mr. T5w- 
ing— Wasn't Mr. Dunnaway a resident of Bed- 
ford countvv A. Yes, sir. 

Q. W isn't Mr. Oooper a resident of Bedford 
countv? A. Y^i s. si'-. 

Q. Sir. Martin, Avas Mr. Dunnaway in the 
city afierthe 6th of July, lSa6 if you recollect? 
A. Well, sir, I don't recollect I know he 
didn't stay but a day or two We met here on 
the 5.h, and he only stayed here a day or 
two. 

Q. Do you know, as a fact, that any letter 
was addres-ed to Mr. Dunnaway? A. I think 
sir. that there Mas a letter that came address- 
ed to Mr. Dunnaw'ay. 

Q Didn't Mr. Dunnaway offer his re.solution 
on the 5th of July? A. Well, sir, I don't tnow 
about that; I never heard anything. 

Q. You ctime on the 4th? A. I came on the 
4th, and we met on the 5th. 

Q. And he -» as here only a day or two? A. 
Only a day or two. 

Q." Didn't he very soon after he came h- re of- 
fer his resignation? A. I'hat was my opinion. 

Q Now, in rci'ard to his receiving a lette;-, 
do you feci sure tiiat he received a letter ad- 
dressed in the handwriting of Mr. Cioper? 
A. There were some letters addressed in that 
way; whether he got thi-m I can't say. When 
letters were a hhe-sed to a member and he was 
nor here, they were put in the Post office. 

Q. Do you feel sure chat a letter in tt\e hand- 
writing of Mr. Cooper was addres^cii to Mr. 
Dunnaway? A Y'es, sir, [am satisfied of that 
fact. 

TESTIMONY OF HON. A. J. FLKTCHER. 

Hon. A J. Fletcher, Secretary of State, was 
next called on the part of prosecution. Being 
sworn, he testified a« follows: 

Question by Judge Patterson —Col. Fletcher, 
you will please state your name in full, your pres- 
ent relation to the government, and your resi- 
dence. A. AndreAV J. Fletcher is my name. I 
reside in the citj- of Nashville, and I am Secre- 
tary of State. 



Q. Were vou occtipying that office in July, 
18(it5. A. Y'es, sir. 

Q. I will get you to state what you may have 
known in reference to the organization of the 
House of Representatives .at its extraordinary 
session, called by the proclamation of the Gov- 
ernor, in Ju'y, 1866. If there was any d'fficul- 
ty in its organization, state what it was ? A. 
Y"ts. sir My actual observation is not as full 
as that of the officers of the House, and some 
niemt?ers of the House of Representat'ves. I 
was not often in the House of Representatives. 
I was very con>tantly, and have been ever since 
I liavebeen in the office, engatied nt my table. 
Difficulties were krow'n to exi^t by he mem- 
bers beiore the day upon whie'h the House was 
to assemble. However, that s a matter of ru- 
mor and report. But I had intimation, if I re- 
member correctly, that there would probably 
not be h quorum on the 4tli of July, the day on 
which the l.egisliiture was to assemble. I re- 
member that, according to our apprehensions, 
there was not a quorum on the 4th of July, the 
day on which th(i Legislature Avas to assemble, 
and from that time on there appeared to be a 
constant struggle to obtain a quorum, and also 
a constant resistance to ihe obtaining of a Ciuo- 
rum. The niemb rs would appear in the morn- 
ing, and some member wou d move a call of the 
roll. It would apiiear that ttiere was no 
quorum present. Sometimes there would be 
very near a quorum, when meniiiers were ab- 
sent and in the city, or said to be in the city. I 
was in the House oni:e or twice whe members 
in their seats refused to answer to their names 
as they were called. I don't remember now 
certainly whether if they had answered to their 
names taere would have been a quorum or not, 
but I remember that the Speaker decided that 
they were not present, decide I that a member 
in his seat refusing tu answer to hi> name 
was not legally present. This state of things 
continued until the morning of the 10th 
of July, the st ssion having been called to 
meet on the 4tli; and very unexpectedly to 
me, two meiidjers who had been absent on ac- 
count of ill health came into my ofUce, 
or one of them at least, and informed me 
that they had arrived. It was about the hour 
of roll call, if I remember. Capt. Hoydt then 
had, if I remember rigiitly, two members in 
custody, and perhaps under guard; and he 
came into my office, with some excitement, or 
animation at least upon his face, and said that 
if those two members were in their seats there 
would 1 e a quorum : and he either asked my ad- 
vice as to what he should do, or told me what he 
was go ng to do; that he was going to keep 
thos.; two members in liis room until all the 
others wei e in their seats, and thi-n take them in 
and shut the door. I think his suggestion was 
accei)ted, and they were taken into his room, 
which is the Register's office, as >ou, perhaps, 
all know; and s-onie minutes Hfter thxt he came 
down and took them up, and they told him that 
there was aiiuoium in the hall of the House of 
Representatives, and he had the key in his 
pocket. That is a general statement, gentle- 
men, of what I recollect. Now. if you wish to 
call my recollection to any particular point, 
you can do s^o. 

Q. Were you in the House of Representatives 
frequently during the efforts to procure a quo- 
rum? A. Not very often, as I remarked at the 
outset. 

Q. I will ask you whether you were in the 
hall and had an opportunity to observe the 
conduct of refractory members? A. I saw 
mem ers Ireq.e tly picking up their hats and 
cloaks, Ac, and leaving the Hou?c. I saw 
members sitting in their seats at dilferent timis 
and refusing to answer to their names, hut I 
coiila not specify now the difl'erent times. I 
know that 1 saw this at both the adiourned ses- 
sion in February, and aUo at the extraor- 
dinary session, but except in particular in- 



87 



stances I coiilcl not separate them iu my mem- 
ory the one ivom the other 

Q. I ask yon if there were parties known in the 
House as lobby members, not connected with 
the House during its sitting? a. As I remark 
cd. 1 was not often iu the Hon- e of Kepresenta- 
tives. I have otten been for a monfli and fix 
weeks at a tmie, since I have been in olUce, ab- 
sent from either house. 

Q. At the time to which yon refer had you a 
tnowled^:eor tlie political stoiws of those loyal- 
ists whettier they were friendly < r unfriemlly t > 
that extracdinary session? A. I recollect that 
there was a dithciilty in obtaining a quorum 
and I saw certain pentlenien m tne House of 
Rcpreseutiitives that I supposed from their 
associ;ition and conduct ami conversation, and 
the eaimestuess and animation with wdiich they 
spo 5 e, were endeavoring to prevent a quorutn. 

Q. With whum were they holding lommuui- 
cation, or with w hiit class of p^'rsons were they 
associating? A. With that cla~s of mmihers 
who had shown by their cour.-e and conduct 
that they did not wish to keep their seats so 
as to make a quorum. 

TESTIMONY OF HON. A. J. FLETCHER CON- 



Q. I will ask you whether you had an oppor- 
triuity to know the to e and temijer of the pub- 
I'c feeling in reference to that question in the 
city of Nasvi'le and county ot Davidson? A. 
Well, my seat in the office "of the .Secretary of 
State is a very good point forobservindr the "toue 
of public sintinitnt throughout the Sate. I 
have thought th:it I could, without leaving my 
office, from the official meetings and casual vis- 
its of persons from ad parts of the State, have 
as good a stand point to understand the toneof 
the pub ic mind as any man in the .'■tite; an 1 1 
was going to observe that the state of feeling 
during that time, during the month oi July, I 
would hardly characterize as exc tement, un- 
less a deep seated anxiety and a proioiind in- 
terest amounts to an excitement But my id"a 
of excitement is something more than a deep 
interest ami intense anxiety. Tliere was cer- 
tainly on the part of one party the most intense 
anxiety to procure a quorum, and there was 
certainly on the part of the other party an in- 
tense desire to prevent it. 

Q. Whj' did thut anxiety and deep interest 
exist md manifest iUtlt in the rainiis of the 
two parties? A. Well, from their expressions 
to me, my view of it was that one party be- 
lieved that th" ra'iflcation of the constitutional 
amendment would be the salvation of the st te 
Government. The government had never been 
recognized by the Federal Government as the 
true government of the State of Teunessee: it 
had never been legitimated by the Federal 
Government; it haa not been recognize i by 
CouLiress, and our Congressmen andSenators 
were waiting to be admitted to their seats, as 
many of th-m had been there ^ince the D. cem- 
her previous. The other party believ'd that it 
would degrade and humiliate Tennessee, to 
ratiiy the constitutional amendment. Ihevso 
talked and so expressed themselves. My inter- 
course was with lioth parlies frequently, for I 
have always tndeavored to be courteous to all 
parties. 

Q. I will ask you whether that partv that 
was opposed to the pas age o! the amendment 
was the one that had beea Iriendiy to the or- 
ganizition of the State Government's it now 
exists? A. Well, sir, I should siy, from int^or 
mation, observation aid roiiver^ation, that that 
])arty was not friendly to the present State 
Government, th-.t thev never had been friendly 
to the present State Government. 

Q. I will ask you, fro your knowle'lg-e of 
the community, being ac itizen of Nashville at 
that time, whether a maiority of the people 
within the city, living here and visiting iiere 



at that time, were friendly or unfriendly to the 
proposed action of that extraordinary session? 
A. My intercourse with the citizens of Nash- 
ville has not been very extensive, but from va- 
rious sources I obtained information that no 
man could fail to obtain who t ejit his eyes and 
ears open. A large majority of the citizens of 
Nashville and Davidson c unty and Muldle 
Tennessee, were unfriendly to the State Gov- 
ernment and its officers, politically speaking, 
and not personally. 

Q. What was the tone and temper of the pub- 
lic papers of 'he city? A. Well, sir, thev were 
fiererally more defiant through the summer of 
1866, than they were before or since I sppak of 
the tone ofth.it class of newspapers opposed to 
the present State Government a> being bolder 
and more defiant during the summer anrf early 
pnrt of the lad of 18(56 than before or since. A 
change seemed to be observed by these news- 
papers after the November election in 1886 — a 
change which I regarded as a change from the 
worse to the better. A change irom better ro 
worse had taken place ai out the February 
preceding. I read the citp newspapers every 
morning, and I have observed taeni gener; lly, 
prett-e closely since I have been in Nashville. 
Q Had you no knowledge of matters connected 
with the issuance and trial of the writ of habeas 
corpus before Judge Fraziei? A. None in the 
world, sir. 

(i. Are there any other mattei's connected 
with the organization of the House not srat"d, 
thatiire material or immaterial in a case of this 
kind? A. No, .-ir. 

The witness was not cross-examined. 

TESTIMONY OF CHARLES E. DIGGONS. 
Mr. Charles E. Idggons was next called, on 
the part of the State, and sworn. 

Questions by Judtre Patterson — Please state 
your name aod residence ? A. Cha^. E. Dig- 
gons, Nashville. 

Q. If you are holding office, state vvhat it is ? 
A. I am Clerk of the Criminal Cotirt of David- 
son Coi.nty ? 

C>. Were you such Cierk iu July, 1866? A. 
I was, sir. 

A paper was here handed to the witness con- 
taining the petition of W.jliam-- and other 
papers which have already been published. 

Q. I will get you to inspect those papers. 
State whether they were returned to you oy 
Judge Frazier? A. They were tiled in my 
office, either by Judge Frazier <r by counsel. 

Q. I will ask you whether Judge Frazier 
directed you to make any record of those 
papers ? A. He did no , sir. 

t>. Neither upon your general record or your 
execution docket? A. No, sir. 

Cross- Saiamined.— Question by Judge Gaut — 
Did not J uiige Frazier deposit those papers in 
your office tile same o ay that Capt. Heydt was 
discharged ? A. I think he did. 

Q. And were you to take care of them a> Clerk 
of the CriminarCourt? A. Yes, sir; they were 
so filed, with the exception. I think, that the re- 
porter of the Press and Times requested the 
Ju'tge to give him the written opiniuii. 

Q. Aii'l his written opinion the reporter of the 
Press and Times got? A. ies, sir; ne asked 
permission to obtain that for publication, and it 
was delivired to him. 

y . You state that you are Clerk of the Crimi- 
nal Court? A. Yes, ^ir. 

Q. .Judge b razier was Judge of the court? A. 
Y'es. sir. 

Q State how long you had known Judge 
Frazier? A. I became acquainted with Judge 
Frazier just be ore the August term of 1865. just 
before the meeting of the August term of the 
Criminal Court. 

y. Were you Clerk of the Criminal Court in 



88 



1865? A. The former Clerk "died, and I was 
appjintdd iu his stiud 
y. lu 1864, or 18135? A. In 1865. 
Q Tliat is the time you became acquainted 
with Judge Frazier, just before that. A. \es, 
sir. 

Q. State whether the reputation of Judge 
Frazier is that of a Union man? A. Yes, bir; 
that wa.5 tLie way 1 always heard it. 

Q State whether Judge Frazier has been 
holdiiig the Crimi.^ai Court on up to this im- 
peachment? A. Yes, sir. 

Q. >raie to this court whether or not, upon 
all rials of any excitement o. a criminal na- 
ture it is customary tor large crowds to as- 
semble in the court house? A. Yes, sir; in some 
cases I have seen large crowds in the court 
hous ^ 

Q. State whether or not it is ciistomary for 
the people to collect on either side of the Judge 
so that they can hear belter? A Yes, bir; 1 
have seea a crowd around so that I sometimes 
could not get witnesses to the stand to swear 
them in. The entran( e of the bar is very ire- 
quently closed by persons who aitL-ud there as 
spectatois. 

Q. State whether or not j-ou wei"e present at 
the trial of the writ of habeas corpus when Wil- 
liams was tried. A No, sir; I was tnere occa- 
sionally. I heard a portion of Junge Harrison's 
and a portion of Mr. Trimble's arguments. 
The duties of ray ollice called me down, and I 
did not attend the tr;al3 unless invited to at- 
tend. 

Q. Were you present as Clerk at the time of 
the I'.yron iiiurder trial, the toil gate keeper? 
A. Yes, sir. 

Q. And also in the rape case? A. Yes, sir. 

Q State whether there were larger crowds in 
attendance at those trials than in this habeas cor 
pus trial. A. Yes, sir; in ther.xpe case I think 
there were more than I ever I saw iu the court 
room. I wa> not tliei-e duiing the wholi of the 
trial iu the hearing of the petition for the writ 
of habeas corpus, and could not say as to the 
extent of the crowd that might have been there 
at any one time. 

(J. State to the court whether you ever, at 
anytime, heard Judge Frazier talking it puli- 
itics, or mixing up in politics in imy way? A. 
In my life, 1 never h( ai d him converse oulv on 
officlil aflairs, as Judge of the Court. I do not 
reco leci to have heard him say anything polit- 
ically. 

Q 'Where was his residence ? A. He 
was living on the Chicken road. He 
has moved since. 

Q How far from Nashville? A. Five or six 
miles 

Q. S^a'e whether he attended any political 
meetings, more than to come to his court house, 
and theu go home. A. 1 do not know. 

Q. 1 mean so far as you could see 3'ourseif? 
A. I never attendod political ruettings myseli, 
and nev' r saw him at any. 

Q Did you have any • oaversation with him 
about these parties who had refused to attend 
the T>egislatiire to make up a qu rum? A. 
No, sir. 

Q. State what is his chTacter; how he de- 
means himselt-in court; vvhethcr his demeanor 
is that of a cauticius, caretul man, to give to 
every man tlie b'nelit of law and justi e? 
A. I have noticed that he was particularly so, 
sir. 

Q. Is not that his character and reputation ? 
A. Yes, sir ; I bave heard ic spoken oi as 
being ttiat of a particu ar and careful man, and 
very particular especia'ly where persor s were 
to lie. judaed guilty. Ke'ginerally admonishes 
them hu 1 speaks to them. He tabes more pains 
than any Judge that I have overseen. 

(.). Did you see anythina- whatever in his 
manner and demeanor during the timt^ he was 
sitting uiion the trial of the habeas co - 
pus case, the Williams' case, luore tuan upon 



any othf r trial ? A. No, sir ; I noticed nothing 
part cular. 

He-direet .Eeamiwa^ion.— Question by Judge 
Patterson.— You were asked whether Judge 
Crazier was considered a Union man. I will 
ask you Mhat his leelings were toward the pro- 
posed action af the extraordinary session of the 
Legislature ? A. Well. I don't know, sir. I 
never heard him express himself. 

Q. Do you know whether he was friendly or 
inclined, so far as his feelings and judgment 
were concerned, to act in concert with the ma- 
jority or the minority? Had you any reason or 
opportunity to knoyv how that was? A. Inever 
called it to mind particularlv. I took it for 
granted that he ^vas a Union nian. 

Q. But. calling to mind such facts as you had 
knowledge of tlien, your knowledge of him, of 
the tone and temper oi his mind, was it, in your 
best estimation, with the majority or the minor- 
ity of the Legislature? A. I could not answer 
that. Inever thought enough about the case 
and about Judge Frazier's oumion as to the ma- 
jprity or minority. 

. Q. I will ask you whether he was regarded in 
July, 18G6, as a liadical or a Conservative? A. 
Well, I don't know that, either. 

Q. You could not say which, whether he was 
one or the other? A. No. sir. 

Q. You were asked in reference to the crowd in 
the court room and on eaeh side of the Judge's 
stand. I don't understand your answer there. 
Is it customary for crowds to collect there ? A. 
Yes, sir; I have seen them sitting near where 
thfi jury is p'ac d, and on the platform. 

Q. I will ask you whether it is customarv for 
the crowd to be so dense within the bar on "each 
side of he court within that railing as to make 
it suttbcatingand unpleasant to counsel engaged 
inatriiilof a cause? a. Well, I have known 
Judge Fiazier to call attention frequently, and 
to make the croi» d move b..ck in the trial of a 
case when they crowded, not so much upon the 
lawyers as upon the entrance to the bar. 

Q. Well, for the crowd to move out who were 
inside the bar, i r thote back ? A. Well, both. 
Q. Is it customary when the croftd is thus 
dense within the bar -to cheer the nrgnment of 
counsel? A. I never heard that. I have heard 
lou'l applause when the v rdict was rendered. 
y. But I ask ^ou, during the argumtnt of 
counsel? A No, sir. 

Q. You have seen large crowds, but never 
have known of that? A No, sir. 

Q. "i ou were not present at the time of the 
tri il ol the habeas corpus case? A. I whS pres • 
ent a jjortio of the time and heard a portion of 
Chancellor Harrison's speech, and might have 
heard a jjortion of the other. I did not pay 
much atteuiion to it at the time. I was busy 
iu my fillice. 

Q, You were ashed whether it was not the 
haijit of Juilge Fr.izier to cl-'se his court and go 
imraedately home or somewhere else? A. I 
don't know now that was. 

General Smith— May it plejse the court, we 
have other witnesses, but they are not in court 
at the present lime. 

Judue Patterson- Under the circumstances, 
we will ask an adjournment over until Mon- 
day. 

The ?e ate then adiourned till Monday at 9 
o'clork, with the understamiing th.t tlie court 
would not be called to order until half past 11 
o'clock. 



MONDAY, MAY 20th, 1867. 
The Senate met at the usual hour, 19 members 
being present 
The minutes M'ere read and approved. 

TESTIMONY OF JAMKS MULLINS. 
.Tames Mullins was theu called lor the prose- 
cution and sworn. 



89 



Question by Mr. Trimble— Just go on and 
state all ihat you know of wbat took place in 
the Capitol. A. We met in the House accord- 
ing to iny recoUei tion, under the coll of the 
Governor on the morningof the 4th ■ f July, and 
adjournal immediately to go oi.t to a 4th oi 
July celebration, and to meet again the next 
morn'Vig at 9 or loo'cloc^-, I will not say which. 
It was the ."ith or 6th. that is my recollection. 
Ttiis i< regardless of the journal. That day or 
the dav ibllowing, being the ^lth. the re^igna- 
Tionoi the member fiom Bedfoid, Mr. Dunna- 
way, was handed in. A motion was ma'ie by 
some member, perhaps myself, that it be not 
receiveii. The motion was carried. The Gov- 
ernor's niessiiee toucliing the same thing came 
out in the papers that day or the next, 
as the resignation was tendered to him 
as well as to the House, and perhaps 
to him and then wi>s sent to the House, 
Things went on in this way for a day or so 
more, and as members would come into the 
House, it seemeii that they unilerstood imme 
dately whether there Mould be a quorum pre- 
sents or not They would gather in little knots, 
onehe>e and another there, over the House, 
and out would go a member. This kept on for 
a day or so more. Under the orders of the House 
the Doorkeeper was directed, as I remember it, 
to hunt the absent membirsup. They would 
travel around about the town, and as soon as 
one was bunted up another would be gone. 
Others would meet them and sei' them on the 
street, or on the steps that go down f'ro'ti the 
Capitol to the street, peihai'S coming this way. 
The Doorkeeper would go ('own, or at least that 
would be his r port, and n eet them and notify 
them, and they wouM not come in. The 
thinsr wori'iel along in tiis way up from 
tiieoth until sonfiewht re about the ibth or l'2th: 
it might have been a little Inter than tha'. I 
saw where things were driftipg to,, and that 
it was probabbi we would rot be able to get a 
quoru'ii, unless 'y order of the House. I arew 
lip a lesulution directing the Sergeant-at-Arms 
to bring to the bar of the House those reiracto- 
ry members thiit were willfully and without 
cocsenr, of the House withdrawing themselves 
from ihe tuisiness of the House. Tliat resolu- 
tion is here and has peihaps been read in evi- 
dence. In pursuance of that resolution we sent 
out the '^ergeant-at-Arms to bring the-^e men 
before the House to answer for their Cimtempt, 
etc. It was seen probable that we would final- 
ly Ije unable to get a quorum. We however 
persisted and sent the Sergeant at-Arms up 
inloJixCkson county or Overton county where 
Martn lived. They captured him and brousht 
him in. 1 am of opinion, hnwever, that they 
brought in Mr. Williams first, from Carter 
county. The Sergeantat-Arms, or his posse, 
brought him in. They captured Mr. Williams 
and brought him in. I saw Mr. Williams as he 
came in, and he went to the Planters' Hotel 
first, or may be he went over to the opposite 
Iioujc. a private boarding house, possibly he 
did. That evening or the next morning he wa-- 
broughttothe bar of the House He seemed 
not disposed to take his seat as a member, and 
my recollection is that a moti. n was made by 
some of the members, I won't say whether I did 
it or not. that these members be requested to 
take their seats in the bar of the House. Mar- 
tin was brought in the next day or a day or so 
thereafter, or about the same tine. The Ser- 
geant-at-i^rms kept them in room Mo. 
•3, one of the committee rooms, which opens 
into the hall, one of the business rooms of the 
House There were then present in the Houf e, 
according to the call of the House, fifty-six 
members. The proposi d amendment to the'Con- 
stitntion ot the Unitd States, thai, had been 
acfed upon bythe Senare and had bfen trans- 
mitt' d to rlie House, was then brought up and 
put ui)on Its final passage before the'Hoiise. In 
taking the vote, tte door of the committee loom 



was, by mv request, opened, that is (he door . 
the committee room No 3. I asked that they be 
brought within the bar of the House and be 
allowed to take their seats. I said, however, 
that I would not insist upon that. According 
to my view they were legitimately within the 
l)ar of the House, in all that made upihe bar of 
the House. 1 he doors were open. The dour of 
that room was about thirty or thiriy five feet 
from the Speaher's stand and very nearly to the 
left of the Speaker, as they called over the 
aves and noes on the passage of this avnendraeut 
I savv Mr. Williams and Mr. Martin both in the 
room pending the call ; and when their name 
was reached Mr Martin poked his head outof the 
door and said he was not present and would not 
answer. The name of Mr VVillijiiis, about the 
last name, was called aloud, audibly. If he an- 
swered it I never heard it at all. "Wliile this 
was going on these men were in cu-tody here 
for two or three days. There were some indi- 
viduals, some members of the Legislature and 
others, whom I saw passing up and down, who 
were holding conversation with these prisoners, 
and it was said that a writ of habeas corpus 
was about to be issued. In a day or two from 
that first declaration the writ was issued, and 
the night, as far as I now remember, before the 
passage of that bill, I came up with three or 
lour or fi'. e other members to the Capitol, am-l a 
crowd ga-^hered at the door af erwards. I sta- 
ted that I came into the < apitol. Upon reflec- 
tion my rec'dlection is that as I came to the 
door of the Capitol, there were four or five or 
six men standing there, with a purpose, as it 
seemed to me, to enter the Capitol. They said 
nothing. I could not imagine any other busi- 
ness they had. I did not k ow the men per- 
sonally. I knew their faces, as I had seen 
th m around town, but con d not state 
they were citizens of the place. They 
gave way a little righ„ and left, and we 
approached the door. There was a man inside 
the dofr, that had charge of the Capitol. He 
opened the door si ghtiy and said that hp could 
not open it further, for if he did these vLen 
would bi'eak in and capture, and take them 
out. I did not know then that a writ of habeas 
corpus had iieen issued, but supposed that they 
had one. We stayed there a few minutes, and 
the posse sheered a' ound the house to our left 
and g'>t out of our sight. The door was open? d, 
and we came in and the door was closed. We 
came up the steps and talked about some little 
matters of counsel among ourselves that I do 
not now remember. It was sometiing relative 
to measures belore us. We stayed till about 10 
or 11 o'clock, and went down stairs and were 
not allowed to go out because a crowd was 
I here. There were six or ten men, and a por- 
tion of them were in front ef the door. We 
could see them by gas light. They were pass- 
ing along on the basement up on ihe first floor. 
We thought we would open the window on the 
east, ai d they were still walking there. 
Things went on in this way lor some time, 
perhaps till 11 or 11>^ o'c'ock. Finally they 
broke away, and at the same time that they 
were on the back side walking, the door was 
opened and we went out. I came back the 
next morning. This mu't have been after the 
adoption of the amendment, and I am satisfied 
now that it was, because the prisoners the next 
morning were carried before the court. The 
iSergeant-at-Arms was in; I left bim here at 
least. I came back the next morning tolerably 
early. I think we met at 9'oclock. I came be- 
fore that hour and the St'i-geint-at. Arms was 
missing The news was that they had got him. 
The day was set for the trial ; however, the 
Sergeant-at-Arms was not imprisoned any fur- 
ther than taken into custody. They did not in- 
carcerate him in any prison. He was a pris- 
oner, however. This I don't know any more 
than what the public rumor was; I did not see 
it. He was missing from the Capitol, and that 



90 



was my information by the Doorkeeper, per- 
haps the porters of the House. The Sergeant- 
at-Arms appeared during that day in the 
House, and that day, or the next day,. I am 
not C'-rtain which, or whether if was the day 
b fore the trial of the habeas corpus or thii day 
after that, that the Sergeant at-Arms 
was taken. The prisoners were car- 
ried before the court, or their case 
was. The prisoners wi-re still in the 
House, as well as I remember perhaps. The 
writ had been served on the parties, and the 
fcergeant-at-Arms was carried up before the 
court, which sat in the court house, presided 
over by Judge Frazier. I was present, and as 
far as 1 remember, i heard the opening ot the 
case, and the repliflcations to the uleadings. 
The pleadings on the ])art of the State wei-e 
conducted by Mr Trimble and by Judge Har- 
rison, and I am not sure now that I remember 
any body else on the part of the State. The 
side of the prisoner was defended by Judge 
Gaut and Mr. Colyar and Judge J. b Biien. 
On the part of th" State, they brought up the 
constitutional authority and power ot that in- 
strument that gives the legislative boiiy the 
control and power of its own body, to organise, 
to judge of the elections and qualifications oi 
its own members, that two-thirds shall consti- 
tute a quorum to do busintss, and that a less 
number than a quorum might adjourn from day 
to da}, and be authorized or "empowerod b}' 
liw to compel the attendance of absent 
meml)ers, anil have all other powers 
consequent or necessary to a republicnn State 
Government or Legislature, or government of a 
tree State. They declared the rules of the 
House. The rules of the Hous t were produced 
and read in evidence in defense of the position 
taken by the Legislature and by the prosecu- 
tion on the part of the State to^-' ards th( se re- 
fractory members, and urged as a reason why 
there was no authority lor interfering, a d 
showed by the action oi the Legislature, as well 
as I now remember in reading the journals of 
1865, that those rules, that had heen perhaps the 
standing rules of the Legislature of ISsg-'GOand 
18W-'6l, had been re-enacted and established as 
the governing rules of the House then organ- 
ized. They were the standing rules adopted, as 
well as I remember, on the 3d of April, i8<55, and 
had been the standing rules up to that perio i of 
time, controlling our action.as a guide and as 
parliamentary law so far as die privileges and 
rules of the House were concerned. Thty were 
urged with a great deal of force by both Mr. 
Trimble and Judge Harrison. Also, in 
the Code they turned to a section 
there where it geem«, as well as I 
can remember, the words in the Code and 
in the Constitution, that they stand 
there in one of the divisions of the code as hav- 
ing been passed as a law. That was urged uy 
Mr. Trimiile with force, and I thought with 
ability, as being the law in the case. Other 
parliament iry rules were referred to. and the 
deb.iteonthe part of tie State ended about 
there. Then the defense came up, and if I am 
not mistaken. Judge Giut opened the debate, 
or Mr. Colyar. I am not certain which. It seems 
to me that Judge Gaut opened, but that is i ot 
niiteiial, I suppose. He urged Ids points on the 
constitutional provisions and the rules of the 
House as not being really law or valid; that 
the constitutional provision for this power 
spoke in language that was to be understood as 
giving the Legislature the right to pass laws; 
that the consiitution that was read there was 
not law, disagreeing with the argument on the 
other side as to the law: and that the law was 
not enacted in the Code according to his view. 
He re;erred during the argument to the rules 
of the House and to parliament^nw law and or- 
der, that that was not suilicient of itself to be 
reco.'uized in a court trying a case of this im- 
portance. He then referred,as I remember, in an 



able manner and with ability, to the d tics of a 
Judge when applied to to issue a writ of habeas 
corpus ; that that was one of the great j)!inci- 
ples lying at the foundation, or growing out of, 
the Magna Charta of Amerban in Jependence, 
and part and parcel of it. He argued his ease 
conscisely, but, as I thoui!:ht, he argued it very 
masterly, using very strong ideas, strong 
terms, and in a forcible manner. Mr. Colyar 
followed, or Judge Brien, lam not posi- 
tive which, taking up in part, but not exact'y, 
the same line of argument that was pursued by 
Judge Gaut. 

Question by Mr. Trimble— I don't know that 
it is necessary to state the arguments of coun- 
sel. Just state the facts that you witnessed. 

Answer by Mr. Mullins.— Juiige Bri .'n pur- 
sued the same course, and finally struck out 
upon this tyrannical e.ourse of the Legislature, 
and seemed to give authority to break down 
the writ of habeas corpus, and wound up by 
applause. 

Q. Well, there was a verv excited audience 
there that day'? A Yes, sir, there was a large 
audience there. The room was crowded, and 
it was very dillicult for me to get in and get a 
position. Some men who saw me on the east 
side of the House bei-koued to me, and I got 
around there where I could stand, but it was 
sufl'ocdiug, as the room was very much 
cro wiled and the day wos warm. 

Q. What was the state of the public mind at 
that time ill Nashville? A. There was a "-ood 
deal of excitement upon the whole body politic, 
so far as 1 could see There was a general 
spiritof excitement abroad, and intensity and 
exf.iteinent was manifested. 

tj. Did the members of the Legislature apore- 
hend the breaking up of that bod}? A. They 
did, sir. 

Q On any special occasion? A. Well, sir, 
they apprehended it ab lut the time — 

Mr. Kwing—vVe object to thjt, may it please 
the court. 

tjuestion by Mr. Trimble — State what took 
place there. Was the lobby crowded? A. The 
lobbies were crowd d iM-etty full, and the inside 
of the lia I of the House Wiis crowded. Persons of 
distinction were making themselves f imiliar in 
the House Some of them 1 knew, and knew 
tliein to be men of distimtiou as to poimlar 
standing and as to tlieir moral character here- 
tolore, and as having cuiisiderable influencp. 
They -^avQ in the House. 

Q.' Who were they? A. I don't know for the 
life of me. I cannot remember the names. 
They were men that I recognized at the time, 
and were gray-headed men. 

Q. Who were they in communication with? A. 
They were in communicat.on with the refrac- 
tory numbers. 

Q. How many refractory members were 
there? A. Twelve or thirteen, perhaps more. 
I might name them. 

Q. i.>o you think they were all engaged in at- 
temijting to orertk up the Legislature? A. I 
think the bigger end ot them, if not every one 
of them, were engaged or sympathized in it. 
Th'ise that did not take an outward position 
wer,', giving aid and comfort to this eflbri. As 
far as I could see, that was the case. There 
may b,, and it is possible it is that way, that 
there were some two or three of the Conserva- 
tive party there that did not encourage it. 

tj. Did air. Dunnaway endeivor or wsh to 
break up the Legislature? A. He did, sir. 

Q. You and he were from the same county? 

A. Yes,. 

Q. Had you any conversation with bim? A. 
One conversation. 

Q. What day? A. That Avas the evening of 
the 4th of July. 

Q. What did he say in reference to the Legis- 
lature? A. He said he didn't think he should 
be up the next morning. 

Q. Said he didn't think he would? A. No. 



91 



Q. Why? A. He said he didn't think these 
ameni'meiits here— didn't think that Governor 
Brownlow ought to have made the cull; didn't 
think the amendments applicahle to the condi- 
tion aid character of the people J don't know 
that those vveie his words, hut that is theiuea. 
Mr. Dunuaway said that he should go hack 
home 

(J. Did you talk with any other refractory 
members'? A. I talked with IVlr. Williams. 

(}. What did he sa} ? A. He said he was op- 
jMJsed to the amendments. 

Q. Well, what else did he say? A. Afrer I 
found him dodging out of the liouse, after he 
failed to com^up, I had an interview with him 
I remarked, Itiir. Williams you hive always 
kept your seat here as a general thing. I have 
always regarded you as a gentleman, but said 
I, it seen s"to me that there is some flicktring 
here in the ranks and do vou intend tobieak 
u|) this Legislature, or help to prevent a quo- 
runs, or wnat do you intend to do? tie said 
his tiusiness was known to himself; that he was 
opposed to these amendments, and did not in- 
tend to assist to pa-s the m. 

Q. Do yuu know anv o.her refractory mem- 
her that you had conversation with ? A. I had 
a conversation with Mr. Martin. 

Q Well, woat did he say ? A. He said he 
would be damned i I he wou d answer to his 
name, and neither would he be one to make up 
a quorum. 

i). Did yoti converse with any other refracto- 
ry member ? A. I conversed with Mr. Mara- 
ble. 

Q. Well, what did he say? A. Well, I asked 
him was he going to keep his seat. You have 
been elected, said I, in the place of some men 
that have acted very badly here. We believe 
you intend to keep your seal;. I do. "Well," 
he said, "I am opposed to your amendment-, 
some of them. Others are leaving their se.its 
and have said to me to do so, but I h.ive not done 
so," said he. I said,! trust you won't, lam 
not certain that he made any reply to the re- 
mark or not. That was close tijion his seat, 
right in front of the Speaker's desk, 'i'he sec- 
ond mijrniug after that he was tone; i hat is, 
the second morniiig alter I spoke to him. 1 
think it was between the 5th and 6th, or be- 
tween the 5th ana KJth, and the first ur second 
m..irning after that his seat was vacant, 'then 
I spoke to Mr. Porter, the meinner from Henry 
county. 1 think 1 spoke to him down on tlie 
Square m Isashville. I said, f. see you 
are hero, Mr. Porter be said, "Yes, I 
am here." I said, why were you not 
up at t)ie House this moi-ning? he le 
plied that he didn't care about coming u , that 
lie had some business there that he warned to 
a'tend to. He said, '-when do you meetagain?" 
I answered, to-morrow morning, giving him 
the time, 9 o'clock, I thin!?. You will be up, I 
sup) ose, said I. What other members, said I, 
are up? He said to me tliat he either saw Mr. 
Brown or some ninn told him he had seen Mr. 
Brown. Ah, saidi, you will be up in the morn- 
ing, I suppose. "I don't know that I sliali," 
s td he. Why so? "I came upon bu-iness, 
of course lam attending to that" W^ell, of 
course when you get through with that, ain't you 
coming u» to the House? "I don't know 
that I shall." 

Q. Well.there were about thirteen of them? A. 
My recollection is about thirteen. 

Q. Did Judge Fruzier ever send any commu- 
nicv«tii:u to the House, when in session, upon 
the subject of the imprisonment of these two men 
or say what he intended to do upon thesubject? 
A. 'J'here was a message came. 

Q. I say dill Judge brazier send a message 
to the House? A. That is my understanding 
that a message came to the House in the shape 
of a writ of habeas corpus. 

Q. "i es, but I am nottalking about that. Did 
he send any written communication to the 



Legislature, in'brming them that he was ap- 
plied to, to relieve two members from custo- 
dy? A. Well, if there was such a commu- 
nication as that, I am not now cognizant of ii. 

Q. The House received no communication 
from any o'her person or oflicei? A. II they 
did, I have not now any direct knowledge of it. 

Q. Well, your officer was tnen arrested with- 
out the knowledge of the House? A. Without 
the knowledge of the House. 

Q. What day was he taken? A. As I stated 
in the first remarks, he was tahen about, as I 
learned, 5 or 6 o'clock in the morning, perhaps 
just at daybreak. 

Q. Was the House then notified bv an officer 
or by Judge Frazier that he was to be arres- 
ted, and was to be carried before the court? A. I 
don't remember that any notification was given 
of it. 

Q. Did the House take action? A. Yes, sir. 

Q. And then that resolution was passed, re- 
spectfully but emphaticallv denying the juris- 
diction oi the cour ? A. Y'^es. sir 

Q. And a lecord was made out and sent to 
Judge Frazier? A. That is my recollection, 
sir. 

Cross- Examination— Question by Judge Gaut 
— < olonel, youSHy you were satisfi' d that there 
was an intention to break up the House. Do 
you mean, to prevent a quorum from being 
present? A. Y'es, sir, I mean that. 

Q. Well, do you mean that that was to be ac- 
complished by the members staying awiiy? ■^^ 
That is the way I understood it. 

Q. Y'ou had no idea that they intended to 
beak up the House by force and violence? A. 
Well, I don't know that the members did. but 
my fears were that it would be broken up by a 
mob; and I think if Gen. Thomas had not been 
here it would have been done. That was my im- 
pression then and now. I only give my im- 
pression. 

Q. Did you hear any person threaten to do 
that. Col. Mullins? A. Well, sir, I couM hear 
them talking on the streets at night, and curs- 
ing and God d— ning the mimbers as they 
would pass them, :ind I could hear it occasion- 
ally in the daytime, and in their scurrilous re- 
marks they mentioned the God d — ned Radi- 
cals. It is possible I may have overestimated 
the State of the public mind 

Q. I will MSk you this question. Col. Mullins: 
The resolution that was passed by the House 
on the I7th of July, ordering Capt. Heydt, as 
Sergeant-at- Arms, to tender to Judge Frazier 
the resolution that the House had pas-ed. and 
ordering Capt. Heydt to detain under arrest all 
the members that he had aiTiSted until other- 
wise ordered — was that resolution ever rescind- 
ed or that order revoked? A. I don't know. I 
am not cow cognizant of it, and would refer to 
the journal lor that. I don't tliiik it was 

Q. Well, on the 19th ol July, if you remem- 
lier. wasn't that theday that the constitutional 
amendment was ratified? A. Well, in my own 
mind I could not say. It is my ©pinion it was 
about that time. 

Q That's as I understand it from the jour- 
nal ? A. Well, I could not state positively 
about it. 

Q. Any how, before that vote was taken, 
didn't you move that Messrs. Williams and 
Martin be invited and n quested to take their 
seats within the bar of the House ? A. Well, 
it may have been so put down on the journal 
and never corrected. My opinion of my mo- 
tion is that they were requested to take their 
seats. It may have been within the bar of the 
House, for their seats were unquestionably 
withi" the bar of the House. 

Q. Where were Martin and Williams at that 
time ? A. In the committee mom No. 3. 

Q. And then you made the motion that they 
take their seats within the bar of the House 
before the vote was taken ? A. Y'es, sir, and my 
recollection is that I withdrew it, or made the 



92 



remark that it didn't matter a particle: that 
they were as much within the bar ot the House 
there, as if they were in their seats. That is 
my recollection of the ca'^e. 

Q Col. Mullins, after they refused to come 
in within the bar of the House, then didn't y.->u 
explainto the House that j'ou believed it made 
no diflerence? A. I don't know that it was 
after they had relused to do so. My best opinion 
is that I stated it before there was any response 
from the prisoners at all. 

Q. Col. Mullins, had vou ever known mera- 
btrs to sit in the committee rooms and vote be- 
fore? A. Often times, sir. I did it myself It 
was not uncommon when we were on business 
to have our names called and 1 1 vote Irom the 
committee rooms, to answer loour names upon 
a call of the House, or the ayes and noes upon 
the adoption of a resolution." 

Q. Without going out of the committf e room? 
A. Without «oing out ot thecommitee room. 

Q. Then it was on the evening of the 19th, 
late in the evening, wasn't it, after you had ad- 
journed that Williams was taken by the Sheriff 
and taken befoi-e the Judge? A. My opinion is 
that that was so; to I'e positive I could not. 

Q. 'J hen on the next morning, on the 2'lth, 
Martin was taken and Capt. Heydt was also 
arrested early in the morning. A. Well, I am 
not positive as to tht- precise time. That is 
about tne way, according to my recollection, 
but to state it to a day or an hour I could not. 

Q,. I will ask you again to givo your best 
recollection of it, whether the rote on the con- 
stitutional amendment was not ta' en in JulJ^ 
19, 1866? A . Well, it was about that time, and I 
would confine myself to the journal Of mj' 
own indeijendent knowledge I could not state 
it. 

Q. What time of day was the vote taken? A 
I am not positive as to that. It seems to me 
that it w:i.s taken in the forenoon, b\it I am not 
sure whether in the forenoon or after dinner. 

Jitdge Gaut here proclticed the journal and 
read a portion of it, to which Mr. Mullins re- 
plied : 

Whatever appears there I should give in as 
being more correct, with the exception of one 
fact, that if the journal says that 1 moved that 
they come out and take their seat^ within the 
bar of the House and stopped there, I don't re- 
member of so putting it in. If the journal 
states that the motion was put and carried in 
that way, without my stating that 1 cared 
nothing adout their being invited in, that I be- 
lieved "they were within ihe bar of the House, 
it is contrary to the way I believe I gave my 
position. 

Judge Gant here read from the House Jour- 
nal at pages, 22 and 23, of the cidled f-ession, the 
motion re erred toby Mr. Mullins, which was 
carried by .50 yeas to 4 nays. 

Mr. Mullins— Well, of course, what is set 
down there is more to be relied upon as cor- 
rect ihan my remembrance, ami 1 refer for 
dates and facts in my testimonj' to that jour- 
nal, with the 1 xception of the fact in regard to 
that resolution. I don't remein tier now that I 
put in the words, "bar ot the House," but 
my recollection is, that after the motion was 
put, I stated that I did nor, care whether it car- 
ried cr not; that 1 believed myielf that trey 
were legitimately within the bar of the House. 
That is my recollection, I may remark though 
that does not appear on record, but that is cer- 
tainly my rec "ilection of the tiansaction. 

Q You sta'ed that you were at the court 
house when the question of the writ of habeas 
corpus was argued before Judge Frazicr? A. 
ye-, sir. 

Q. State to the court whit was Judge Fra- 
zier's manner, whether he seemed desirous to 
investigate tne cause, and to have all the light 
he could on the law questions, or not. A. I saw 



nothing to the contrary, sir, whatever^ It 
seemed to be a determined purpose to investi- 
gate the powers of the different branches of the 
government, and the laws rega-ding the writ 
of habeas corpus, and a very determined pur- 
pose that those laws should be earned out. and 
with the exception of suppressing the first ap- 
plauding of the crowd, a thing I never saw 
done be ore, everything else was orderly, and 
the second a(>plause tiiey gave to the sye"ech of 
either Mr. Brien or Mr. Colyar, was a much 
louder and more manifest one th u the first 
was. In that the Judge rema ked that si- 
lence must be kept in the court and 
that he would enforce the power ot the court. 

Q. JJo you recodectof his artmonishing Judge 
Brien that he >^ant -d him to avoid alluding to 
anything like politics? A. Yes, sir. 

Q. Stite whether or not Ju.lge Brien didn't 
ask whether it was legtimate to allude to poli- 
tics and whether the Judge cidn't tell him that 
it was uurely a political question? A. Well, 
something was said ) think by Judge Brien in 
regard to that, and the judge told him tliit 
political questions could have nothaiii: to do 
with the 'C^se, and that he uidn't wishhim to 
argue in that way. 

Q. Col. N nllins, how long had you known 
Judge Fraziei ? A. To know him from sight, 
but perhaps a little while. I really knew the 
man's face, but.didn't know that it was .Judge 
F-razier. i have known him lor perhaps two 
or three years, but I didn't know th.it it was 
him. Sin e I learned the name I recognized the 
f.tct th tt I had seen him for some time. 

Q. I didn't know but you knew something of 
his character and reputation in E^ st Tenutjssee, 
befoie he cane here ? A. No. sir, I didn't know- 
that it was Judge Frazier until they went into 
the hearing of this case, 

Q. Did ;, oueverst:e Judge Frazier about in 
political caucuses or gatherings anywhere, 
Coi.JMuHins? A Not that I know of, sir 

Q. Did you ever see Judge Frazier in the 
Legislature at all, during the session ? A. If I 
did I don't remember it, sir. I saw him :ibout 
the Capitol here, perhaps since or beibre that 
time, but about that time I don't remember to 
have noticed him. 

Q. Do you recrdlect. Col. Mullins, when you 
were in Kast Tennessee, in 1864. previous to the 
Presidential canvass, of hearing anything said 
about Judge Frazier's being driven off and 
competed to leuve his home ? A. W< II, I heard 
of such cases, but I don't rememijer the 
names. 

Q. The counsel on the other side has asked 
you whether Judge Frazier sent in a communi- 
cation informing the Legislature that a writ of 
habeas corpus had been issued and vou stated 
that he had no to your knowledge. A. I don't 
now remember it. sir. 

(j. Was there ever any notice sent to Judge 
Frazier until after the proceedings were ne- 
cided, or at any tune, that there was a quorum 
present? A. I think there was, sir. There 
might not have been a quorum present exclu- 
ding ]Mr. Williams and Mr Martin. 
Q. Well. I mean was any other notice fentthan 
the return that was made to the writ of habeas 
corpu-? A. 1 am not certain that there was. 
There were resolutions and a good deal ot 
labor in the shape of re^olutions, etc. This was 
done by the House with a view to assert their 
ritht lb hold the |iriso1iers. 

Q. The jouru-.ils show that? A. I could 
not be (lodtive as to the number. 

Q But what 1 vvanteit to turn your attention 
to was whether there was any resolution 
passed and sent to Judge Frazier. such as was 
made a part of the return? i\.. If t^.ere was 
anything of that kind I have no knowledge of 
it. 

Q. Have you any knowledge that Judge 
Frazterkncw about i he conduct of these mem- 
bers of the Legislature, or their intention to 



93 



break np the Legislature and prevent a raio- 
riim, except such as ho ilecided in his judicial 
capacity there in the court house? A. Not of 
my own knowledge, sir. 

The member from Warren, Mr. Thompson, 
then offered the following motion: 

"Resolved. That neither the managers nor the 
defenilant shall be permitted to introduce or 
examine any witness unless it be pertinent to 
the issue raiseel in this impeachment. 1st, as to 
the discharire of Williams and Martin. 2d, 
whether in discharging Williams and Martin it 
was done corruptly by the accused. 3d, sis to 
good character. J. P. Thompson." 

The President— The presumption is that the 
court is acting under the rules which govern 
the Senate. Uuiler this the resoluiiou lies 
over until to-morrow. 

Si-nator Thompson— The rule=; by which this 
court should be governed are the rules of par- 
liameiitiry law and the rules of the Senate. Af- 
ter the court is organized it must proceed ac- 
cording to the rules of common law, and the 
President is to I'egulate the proceeiliugs accord- 
ing to the rules of common law. Witnesses 
have been examined here in a manner in no 
way connected with tlie case, and are we 
doomed to vit here ten days longer? I disclaim 
any intention to interlere with the man;igei-s, 
but it is in defense of the court that I do it. I 
think that it would be a salutarj' rule lor the 
court to adopt to-day, especially after the ex- 
amination we have had of the witness just be- 
fore the court. Why, this all tends to Out one 
point, and one point a^one. Therefore I hope 
that the question will be decided. 

Semtor Thompson Unally agreed to with- 
draw h s motion and renew it in the morning. 

TESTI.AIONY OF EEUEL HOUGH. 
Eetiel Hough was next examined by the 
prosecution. 

Question by Mr. Mayrard — Vour name and 
residencef A.. My name is Keuel Hough; resi- 
dence Memphis, Tenne-see. 

Q. riease state if you were living there in 
July, It^tif'? A. I was. 

Q. Do you hnow of any eflbrts being made to 
deteat th'c; action of the Legislature by prevent- 
ing the assemiily of a qnorom? A. I cannot 
say that I knoiv of any ellbrt really having 
been made. I received a letter from Washing- 
ton which seemed to look that way. 

Q. Have you that letter? A. I have, sir. 

Q. Produ e it it you please? A. I have an 
extract made from the letter. 

Q. This s all that relates to this subject? A. 
Yes, sir, that is all that relates lo this sub- 
ject. 

Q. Who was the writer of the letter, sir? A. 
Hon. -Tohn W. Leitwich. 

Q. What was his position at that time? A. 
He was a mi mber of Congress, or a chosen 
nseraber of Congress, but had not been admit- 
ted at til at tme. 

Q. What -was your position at that time? A. 
I was collector of internal revenue for that 
district, the ohl first di>trict 

Q. Is this letter in the handwriting of John W. 
Leftwich? A. It is. 

Q. Do you know whether it is an official pa- 
per? A. I suiiposeit to be. 

Me. Mavnarcl— I w ill read the parts that are 
proposed to be used as evidence, and the letter 
Itself can be examined. 

Judge Brien— We would like to know in the 
first place what there is in the letter. It may 
be that this correspondence between Mr. Leit- 
wich and Mr. Hough may have nothing to do 
with this tri:tl in any way whatever. We would 
like to know whether it is in reference to this 
trial If not, ceriaiu y it is irrelevant and ought 
not to be read here. 



Judge Gaut— I ajiprehend that in no other 
court in the world would this private letter that 
niiiy have been written to this witness have 
been e\en introduced. This resiiondent is 
not responsible tor what Mr. J.eftwieli, or Mr. 
Hough did. the one at Washinglon i.nd the 
other at Memphis. From the highest to the 
lowest civil or criminal cause in the world in a 
court of justice, a private letter of other parties 
could not be introduced as evidence. We 
do not know what is in that letter, but 
putting it upon the pi-inciple of law, for the 
rules 01 evidence are the same in this court as 
in any other— a court is a court and the law 
fixes the rules of evidence. Now, will this 
court hold that a letter ihat may have been 
written by Mr. Leftwich at Washington City 
to this witness in the city of Memphis, is evi- 
dence against Judge Frazier! That is a legal 
objection without knowing what is m the let- 
ter an objection which we put to this honora- 
ble court. All the members of this court have 
seen jurv trials. This court is a lurysotaras 
the fact is concerned, so far as the law is con- 
cerned; but it is bound bv the same rules of 
law that aTy other coui-t is. I appeal to the 
court if they ever saw in any trial, civil or 
criminal, where p ivate correspoi dence be- 
tween other parties could be introduced 
against the defendant on a trial of a civil or a 
criminal cause? We object to it because of its 
incompetency and irrelevancy, because it is 
no law. 

Mr Maynird — This is simply a re-argument 
of a question that has alreaay been argued and 
deciiled several times. We are attempting to 
show simply, that there was a combined and 
concerted eflort m:ide to defeat the action of 
the Legislative body of the State by tactions 
opposition, and by bringing inducements to 
bear upon memiiers. to abandon their duty and 
desert their posts. We have here a letter. We 
have the whole letter, but we propose to put in 
evidence, only those iiortions that are peitinent 
to the issue. We propo-e to show that a public 
man, elected as a representative in the councils 
of the nation, writes to a Federal otlice holder, 
in the ilistrict he represents, to use his intlucnce, 
his situation, to accomplish this revolutionary, 
this enormous violation and neglect and aban- 
donment of outy, and we wish to snow and we 
expect to show, thut a part ot the same 
general machinery was the pioceeding be- 
fore this court; tha't that was one of the wheels 
or, if you please, one ot the c;>gs in the 
wheel, that was to efi"ectthis great purpose that 
wassougnt ti be accomplished, which was the 
moving cause of this trial. This impeachment 
is not looking to a narrow personal view of the 
case so far as this party is concerned alone, but 
to the great interests of the State, to the rights, 
privileges and duties of one branch of the 
government, I may say the most 
important branch of the govern- 
ment, to wit: the popular representative 
branch, and this letter that we ofter, as we have 
offered the interposition of divers other public 
characters, as we have offered 1 he conduct of 
men in and about this city, to show a < ombina- 
tion of purpose, to show an eflort such as 
has no example, no parallel I undertake to say, 
in the history of Tennessee or in tnatof the Uni- 
ted States, and which I trust will never find any 
body 10 imitate it, to defeat by revolutionnry 
action, by using a precautionary provi-ion of 
the Constitution of the State of Tenvessee, to 
overthrow one of the branches of the Slate 
Government. Ir, is in that point of view that 
we ofler tids, not as a declaration, but as an 
act, as a thing that was done, as a means that 
was used, a proposition put forth to bear di- 
rectly upon the Legislature, in the persouofone 
of its members. 

Judge Gaut— The honorable court will see 
at once the grounds of our objection. Judge 
Frazitr i:^ on trial i ow. 



94 



Mr. MaynariS— "We only propose to offer such 
parts of the letter as ai'C relevant 
Jiidse Gaiit— Let us see the letter. 
Mr. Mayuartl— Certainly. 

[The letter was here handed to Judge Gaut.] 

Judge Gaut— The point we make is this, and 
surelv in this court we have not losr our ordi- 
nary rights of lustice, and if Mr. Leitwic.h wms 
upon trial charged with any ofl'eube, then the 
letter written by him would be pertinent. But 
Judge Fruzier is charge I with an offense, and a 
letter written from Washington City lo another 
gentleman living in th- city oi Memphis is here 
offered in evidence against Judge Frazier. I ask 
tiiis court in all seriousness, is there 
a precedent Avhere this has been done or can 
be done in any hody that pretends to be a court? 
So far as this court can see, and so far as we 
can S' e. Judge Frazier has nothing more to do 
with that letter than the honorable President 
of tliis court or any other gentieman in it. It 
has uo connection with it at all. If such a rule as 
this is observed in any court, is there any se- 
curity for life, liberty or property or reputa,- 
tion? If such an offer as this was made before 
a Justice of the Peace in the trial of a civil 
cause, it would be >purned at once. If it was 
presented before either ol the courts sittintr at 
the cturt house, and they would admit it, they 
would be reversed by the Supreme Court. This 
court is governed by i'uleso- law and evidence. 
What IS evidence ? It is that which demon- 
strates and makes clear a point in isue. The 
point in issue is the guilt or innocence of this 
defendant. Another deflnatioa of evidence is, 
that which makes plain to the minrls of the 
triers the truth of a given propositi'^n. The 
given proposition here is, is the defendant 
guilty, not whether Mr. Leftwich has been 
guilty, whether other parties have been guilty; 
but, "as has been remarked by the Senat )r who 
introdiued that resolution, we have objected 
to irrelevant testimony here until we were 
ashamed and tired of making objections. The 
greater pait of the testimony that has been 
taken here would have been excluded before a 
criminal or a civil court. But before 
this court, a court the highest in the 
country, this respondent is brought upon a 
charge that is to affect his character and repu 
tation and his privileges hereatter, aiul those of 
his family. Ant' surely the rules in such a 
case ought to be relaxed instead of contra ted. 
But they are so relaxed now, that we are going 
into whit everybody in Tennessee and out of 
Tennessee hasbeen doing as a matter against 
the defendant. It is a legal objection, not ateeh- 
nical objection — a sound, legal object'on— that 
we make here to tiiis court. It is that this testi- 
mony is not pertinent, and whatever may have 
been written to this officer is not t-vidence 
against the defendant. We make this objection. 
Of cotirse we must submit to the ruling of the 
court. 

The President— The question be ore the court 
is, sli;ill this testimony be received? 

The question was then put to the court, and 
it was decided by a vote of thirteen ayes 
to six noes that the letter should be received 
in evidence. 

[It is proper here to state that Col. Hough re- 
marked that the letter was a private letter, and 
that he did not wish to have it read in court, 
but that as he had expected to be examined in 
relation to this matter, he had prepared certain 
extrncts from the letter, which he thought were 
pertin nt, leaving out those matters which 
were of a purel v private nature. At the request 
of the counsel for the resp ndent the entire Ipt 
ter was, however, read in open court. We 
make this statement as a matter of justice to 
Col. Hough.J 



Mr. Maynard here read the letter, which is 
as follows: 

House op Representatives, ) 
Washington, I). C, June 21 1S66 \ 

My Dear Houon: I have not enjoyed the 
pleasure of heariug from you, but am still, 
through the industry of our friends, able to 
hear of you often. 

Col Cooper, the President's Private Secretary, 
has just told me that he had received some sei-i- 
ous complaints against me for the interest takea 
in your nomination. He could not give the 
authors, as the communications were strictly 
confidential, but expre-ses the belief that I 
kuow what I'm doing. Senator Pat erson still 
says, howevei-, that I am mistaken in my man, 
but I tell him to look alter East Tenness<^e, and 
his hands will be full I recdved yesterday 
from an unknown source, an editorial from the 
Avalanche on the subiect, which I think will 
do you more good than harm. But this is not 
what I stai-ted to write about. I want to ask 
you to see our friend Rich rds, and if he cannot 
be induced to oupo&e the ratification of the 
constitutional amendment let him take sick 
and stay at home, imd he and you 
shall never regret it The Northern "people" 
do not requireof us any such ruinous legisla- 
tion, but recognize, as you and I do, that m giv- 
ing the negro ueedom and all the civil rights, 
that we have done quite enough without giving 
him a right to intetfereinour elections, and this 
IS all the amendment means. Thi^ is the most im- 
portant issue ever presented, and if we ratify 
it there is no telling what will be the next re- 
quirement. A refusal to ratify i may keep us 
from our sea s for a while, but that is notniug 
when princiide is at stake. Now, Hough, I have 
given you an easy p irtin so important an issue, 
and yf>u must do it. 

Sometime ago, Richards wrote me ask ng a 
favor which it is inipo-sible yet to do, and I so 
wrote him and hope he properly understands it. 
I will not probably wiite to him on this 'ques- 
tion, but will rely exc'usively on ^our m.ia- 
agement, as I know he will be influenced by 
you in any thing that is not in itself wrong. 

1 may ^co to Nashvdle if they have a quorum, 
but I hope they will nof. I would be pleased to 
hear from you at length. 

Yours, truly, JNO. W. Leftwich. 

Question hy Mr. Maynard— Had you other 
communications irom the same source of a 
similar character ? A. I had other communica- 
tions. 

Q. Nothing relating to the attendance of a 
quorum ? No, sir. 

Q. Did you communicate with Mr. Rich- 
ards ? A. I wrote him, but he was at Nash- 
ville at the tira'3. I do not recollect exactly 
what I wrote him. I wrote him what Mr. 
Leftwich's wishes were. 

Ee- cross-Examination — Question by .Jii'ge 
Brien— I avouUI like to ask you, Mr. Hougn, 
whether you have communicated the coute> ts 
of that letter to any other person than Mr. 
Richards ? A. No, I did not. 

TESTIMONY OF F. S. RICHARDS. 

F. S. Richards was next called, as a witoess 
fpr the State. 

Question by Mr. Maynard— Your name and 
residence? A. F.S.Richards; Memphis, Ten- 
nessee. 

Q. Your connection with the Legislature? A. 
I was elected as a member of the Legislature, 
rei resenting Fayette, Shelby, and Tipton 
counties, at the election held in March. 

Q. Were you here at the extraordinary ses- 
sion, held in July, 1866? A. I was. 

Q. Any efforts made to induce you to keep 
away, or to go away after you cume here? A. 
No, sir, I don't know as there were any after I 
came here. Col. Hough, I think, secured that 
letter previous to my coming up here. He 



95 



probably had forgotten it. but I think he showefl 
me the letter before I came here. That is my 
recollection. I never received any letter from 
Dr. Leftwichin regard to that matter. I hid 
received some letters from him before, that were 
of a iirivatenitnre, bntnothiug whatever in re- 
gard t,) the Julv session, from the faci. that the 
letter was written before the sess on met. 

Q Well, you were pres.nt at the Legislature? 
A. Yes, sir. 

Q. And took part in the proceedings ? A. 1 es, 
sir. 

Mr. Mnynard— We have examined other mem- 
bers in regard to this matter. Our object in 
calling him was to show that this motive had 
been brought to bear personally upon him 

Orotss Examination.— Que-tion by -ludge Bri- 
en — Did j'ou communicate the fact that this let- 
ter had been shown you by Mr Hough, to any 
one ? No, sir. All that I said was on one oc- 
casion in the Ht)use. Frob.ibiy the reason was 
that [ was a little excited in regard to some re- 
ma' ks of Mr. LeUyet^. Perhaps that is the 
rejsou why I am here. I stated that I had been 
improperly approached msself. I then had 
reference to the letter which has been read 
here. 

Q. You did not state how, though? You iust 
simply stated that you had been improperly 
aoproached? A. Yes, sir, something to that 
effect. It was drawn out of me by Mr. Lellyett 
niJking a remark in regard t" the Tennessee 
Legislature not having adopted the amend- 
ment. 

Q. Thatis all the information you have? A. 
Yes, s'r; it grew out of what I referred to at 
that time. 

Q. You never received nny communicatidhs 
or messages or anything else from Judge Fra- 
zier? A. No, sir, none whatever. 

On motion of Senator Thompson, the Senate 
adjourned. 



TUESDAY, MAY 21ST, 1867. 
The Court met at the usual hour, nineteen 
members present, and President Frierson in the 
chair. 

The minutes were then read and approved. 

Senator Thompson said that as the court had 
been many days in session he did not know that 
the resolution clfered by him on the day pre- 
vious would facilitate the business, and he 
therefore leoiucsted permission to withdraw it. 
Leave was given, and the resolution was with- 
drawn. 

Senator Spence sa'd it had been suggested 
that the hours of session be changed. If this 
would facilitate matters he thought it would be 
an advantage to the members, and he therefore 
moved that tne court meet each day at 9 A. m., 
and ailjourn tit .3 p. M. 

Several Senators spoke against the motion, 
and, as it was not seconded, the question was 
not put. 

TESTIMONY OF EDWARD F. MULLOY. 

Edward F. Mulloy was next examined as a 
witress on the part of the State. 

Question by Mr. Trimlde— State your name 
and residence. A. My name is E. F. Xdnlloy; 
I r: side in the city of Nasnville. 

Q. Were you here m July, 1866? A. Yes, 
sir. 

Q. During all of the extra session ? A. Yes, 
sir. 

Q. Do you know anything of Judge Frazier 



and the counsel? Just tell all you know about 
it. A. Well, I don't know what thfe meeting 
was for. 

Q. Well, state what you know. A. I had oc- 
casion one day to go into Judf;e Gaut's otHce to 
see Judge Brien. who, I was informed, was in 
there; and Judge Gautwas in there, and Judge 
Brien, and the former Speaker of the House, 
Heiskell I believe, an old gentleman, was there, 
and Howell Webb. I think there were some 
others in there, but I forget who they were. 
My business was with Judge Brien, and my 
stay Vi'as of very short duration, because when 
I stepped in I saw — 

Q. Was Judge F azier there? A. Yes, I 
think Judge Fiazier was there. I did not want; 
to know or see anything they were doing. My 
business was with Judge Brien, and I said 
what I wanted to him, and went out. 

Q Where is that office? A. It is on Cedar 
street. 

Q. Is it near the Capitol? A. On Cedar street, 
near the Cai itol 

Q Well, it is nearly opposite the Catholic 
Church? A Just below Mrs. Porter's. 

Q. Is it a law office? A. Yes. 

Q. Two rooms to it ? A. Yes, sir. 

Q. What time of day was it when you went in 
there? A. About one o'clock, I thuik. 

Q It was during the extra session, was it? 
A Yes, sir. 

Q What day was it, do you remember? A. I 
doa't remember the day of the week. 

Q. Is there any circumstance to lix it in your 
mind? A. I think it was about the time the 
proceedings weie goins: on heie in regard to 
the constitutional amendment, and I think it 
was just after speaker Heisk. 11 had leit his 
seat, and Judge Norman had taken itas Speak- 
er of the Hou-e. 

Q You say it was about the time that Speak- 
er Heiskell left? A. I think it was shortly af- 
terwards. 

Q. What day of the month, as far as you can 
remember? Well. I can't say. 

Q. Was the habeas corpus ca=e going on. 
then? A. I think it was. 

Q. It was vending the trial of the case be- 
fore Judge Frazier? A. I think that case was 
pending be ore him at the time, but I don't 
ktiow. 

Q. There was a good deal of excitement 
there? A. Yes, sir, a good deal of excitement. 

Q. You went tiiere to see Judge Brien? A. 
Yes, sir. 

Q You ente-'ed the first door. Was the first 
doornf the office shut? A. No, sir. 

Q. Was the seconu one? A. I think the second 
one w:is closed. 

Q It was closed? A. Yes, sir. 

Q. You opened it and wentiu? A. Yes, sir. 

Q. And vou found tliere who? A. Judge 
Brien, Judge Gaut, and Mr. Heiskell, and 
Howell Webb, and Judge Frazier. It seems 
to me there were some i th rs, but I forget who. 

Q. Was Mr. Colyar there? A. I forget who 
it was. 

(j. Don't remember whether Mr. Colyar was 
there? A. I don't remember whether it was 
him or not. I will not be po-itive about it. 

Q. When you went in there, what were they 
doing? A. I think Judge iirien was engaged 
in writing something, and Howell Webb in 
writing something. I think Judge Gaut and 
Mr. Hei>kell were talking. Heiskell was sit- 
ting at the back door of the office. It was 
open. 

Q. Did you hear anything said after you got 
in? A. I don't remember an> thing said after I 
got in. I did not want to hear any. 

Q. Ceased to tall?, did they? A. I don't know 
that they did, because I did not stop long 
enough to hear, and I went to Judge Brien and 
whispered to him and he said he was very busy 
and I immediately went out. 



96 



Q. Do you know of any otber lawsuifs they, 
had met to talk of? A. I don't know. 

Q. What were they engaged at ? A. I don't 
know. 

Q. AVas that after Mr. Heiskell had declared 
that there was not a qxiorum? A. Yes, sir, 
after he had resigned to Judge Norman. 

Q. And pending the wr t of habeas corpus? 
A. Yes, sir, I think it was about the time ol the 
greatest excitement. 

Q. Had the argument been made then in the 
courthouse? A. I don't know whether it had 
or not: I don't I'emember what time that argu- 
ment took place. 

Q. You don't know whethf^r it was be'^ore or 
after the trial at the court house? A. No, I do 
not. 

Q. That is all you know in refei-ence to the 
matter? A. All I know in reference to that 
matter, all I can remember r ow. 

Q. Do you know of any other caucusing? A. 
No, sir; all I know is just what I have stated. 
There were gentlemen in there. I would not 
have been theie if I had not had some business 
about another matt r. 

Cross-examination.— Qnesiion by Judge Gaut 
— I understand \ oti ro say that was after Speak- 
er Hfiskell had resigned his position as Speaker, 
and after 3Ir. Norman hdd been chosen Speak- 
er? A. Yes, sir. 

Q. I w mt to show you the record here. [Tudge 
Gaut then exhibited to tbe witness the House 
journ:)l for the calle 1 session of 186G 1 There is 
July the -i-ith, 1866. The Speaker asked that he 
might be relieveil, and a Speaker pro tern., ap- 
pointed. A. Tiiere was another time, though. 
It was the time when he def.lined. 

Q. Well, you sta;e that Judge Brien was in 
there, and that he was writing something? A. 
I think that he was writing something, and 
Howell Webb was sitting at another table 
writing. 

Q. State. Mr. Mulloy, if you knew whether 
Judge linen and myself were not engaged In a 
cotton c:ise— I lor Kennedy, of Knox county, 
and White, of Hawluns eounty, and Judge 
Brien for King's administrators. A. I do not 
know aaytning ahout that. 

Q. Yfiii don't, then, uretend to tell us what 
th-y were doing? A. No, sir. I stayed in there 
only a short time ; and going in there as 1 did, 
and seeing that they were engaged on business, 
I did net want to intirfere. I only wanted to 
transact such business as I had wiih Judge 
Brien, and I whispered to him, and he said he 
was very busy and would see me again, and I 
immediately went out. 

Q. State if that back room was not 
the room Avhere I had my desk and mv 
books, and where I always stayed? Have 
not you been in there frequently? A. Yes sir, 
you occupied the ba''k room. A portion ot your 
books were in the back room, and some in the 
front riom, but I think you most generally 
sta\edin the b ick room, where jour wiiting 
materials were. 

Q. I wdl get you to state whether you did 
not luiow, ai the ti ■ eof tbe proceedings before 
Judge Crazier, and betore Judge Frazier's fam- 
ily WMS moved to Davidson county, that I per- 
mitted him to (Hit his bi'd in theieand sb ep 
there, .ind wheiher he did not hav e his meals 
brought th' re, and whether he did not stay 
there the whole t 'rm of the court? A. Well, 1 
do not know really a' out that. 1 do not know 
whethor that was so or not. I had not learned 
about tliit. 

Q. Don't you know that he slept there du- 
ring the 'erm of the Criminal Court? A. Well, 
if I did. it has es.uiped n»y memory. 

Q. Had you not been in there and seen him 
write, or did you not go in at any time to see 
him on business? A. I do not remember that 1 
did. 

Q. Did he not occupy that table in front of 
the flreplace, and did i not have a desk and ta- 



ble of my own? A. It is very likely he misht. 
I do not pretend to say how that was. I do not 
pretend lo say that it "was not so, by any means. 
Q. Will you state whether Webb & Merriott 
did not have an office adjoining ours? A. Yes, 
sir. 

Q Well, was it not common for lawyers who 
wanted authority and had not got it in their of- 
lice to go to 8. brother lawyer's office and ex- 
amine the book? Was not that frequently 
done? A. Yes, sir. 

Q State whether you have not done it at my 
office and I at yours? A. Yes, sir, in boh 
places. 

The counsel for the State here said that they 
wished to examine Judge Shane, Judge Butler, 
and others, but that they were not present ia 
court. Judge Shane was holding court at the 
time. It was then stated that tlTe defense could 
proceed with their witnesses as to character. 

Mr. Trimble— We want to hear testimony 
about character. 

Mr. Ewing— We regard all testimony irrele- 
vant, and now, through the testimony of Mr. 
Mulloy and Judge Shane and Mr. Butler, they 
seem to wish to make out a conneciion witn 
Judge Frazier. 

JmUe Gaut— We want to hear their side. 

Mr. Trimble— Our case is made oat. It will 
be for the court to determine. We wish to 
prove the fat't of a caucus. 

Judge Gaut— What they prove will be a ques- 
tion (or the court. 

Mr. Kwing — That is our opinion, and they 
have a right to tlieir opinion. Our opinion is 
that thereupon hinges tho whole testimony. 
We deem it necessary that that evidence, what- . 
ever it may be, should go on. We have a mo- 
tion which we intend to make 

Mr. Trimble— I don't see why they shouldn't 
examine their witnesses as to character. I 
cannot see ■■my injury it would be to them to 
proceed with their witnesses. Suppose if that 
witness keeps away without our fault the court 
will perhaps permit him to be examined at a 
future state of the proceedings. I will add iur- 
ther that the gentleman cannot be surprised, 
because we tell him the point on whioh these 
gentlemen will be examined. 

Mr. Kwing— 1 know that very well, but then 
we say that that is the whole point in the ''ase. 
'J hey allege a conspiracy, and they also allege 
that Juifge Frazier is a partaker in that con- 
spiracy. Wethinii that up to this time they 
have made no proof of his eonnection with tluit 
conspiracy. Wnenthevhave concluded, I say 
that we have a motion to ma,Ke before we pro- 
ceed w ith any evidence at all 

Mr. Trimble — I would inlorm the gentleman 
that we don't rest this case on any conspi- 
racy. 

Mr. Ewing— Then that is a fancy of mine. 

Mr. Trimble— Thaii is a hope of yours. 
, Mv. Ewing:— Well, any way. 
' Mr. Trimble— I rest the i-ase upon its own 
mere merits, to wit: this, that one of the gene- 
ral branches of the government and ihe most 
important brancdi, called tor a high purpose, 
engMgtd in thtir legitimate business of making 
laws, was attemijte 1 to be broken up, ami it 
v.as sought to throw the state into sedition; 
and we desire to show that th s was 
known to the whole country, and of 
course it was known to Judge Frazier, 
as an intelligent gentleman who could reail the 
papers, who could read society and who knew 
the hearts of men; and that when they were 
thus engaged in their high voca'ion, sovereign 
above all in the State of Tenn*ssee, in their own 
department, that tlie'e and then a judicial officer 
undertook with all the knowledge that I have 
just described he had, to embarrass, to prevent, 
the action of the General Assembly, for which I 



97 



say there is noexcuseeither inlaw or r<?ason, or 
anythiug- under heaven or under the earth. 
That is the ground 1 take, and this has no im- 
portance Aviiatever except that it underlies 
the independence of a popular branch of the 
Government of Tfennessee. That is my posi- 
tion. As to little pet'y conspiracies I don't 
care whether there were any or not I care not 
for these litilepe'ty episodes. I rest the cas'S 
that the Legislature within its own sphere is 
absolute and independent, and, its organi/.a'ii>n, 
its proceedings and its quorum are simply Jbr 
that body to determine, and no other b( dv can 
take cognizance ot them; lor if a judicial oflicer 
may taKe coguizanceof the proceedings of the 
Hoi^se and say that this i« a quorum and that 
is not a quorimi, then the LcKislature is not an 
independent body. If it were not for that, God 
beiT g my judge, I should not be hereto-day. I 
feel no interest in tlie case except upon the 
ground I h ive stated, and I have lieen honoreti 
with a position to assert the rights and i riv- 
ilegesol the House of Kepreeentatives, and I 
mean to defend them. 

Mr. Ewiug— VVell. that is all right, if tlie gen- 
tleman conceives it to Ije hi^ duty to assert the 
claim of what he pleases to call a branch of the 
Legislature of Tennt-ssee, and ihe rights of 
Tpnucssee, andno man has any morf respect 
for a branch of the Legislature of Tenressee 
than I have. But, sir, I don't yield still, and 1 
shall not yield until this cause is closed, at. any 
and every hazard assert the rights of a citizen of 
trie State of Tennessee, and I shall persist in as- 
serting them aga list all assaitLon of dgnity on 
the pal-t of the Legislature. The Legislature 
may be very higli; it may be very powerful, 
butneitner the Legislature of Tennessee nor a 
branch of the Legislature have a right to trample 
upon or to disrespect the rights of any individ- 
ual of the State of lenncssee, whether he be a 
member of that body (>)• wheiher ho be anybody 
else This is talking vaguelv. We are ter- 
ttiinlv a&liing them lO do what is not an unit-a- 
sonublf- thing, to close their case; and we don't 
ask them to close their case mia-oly as a matter 
of form or from obstinacy on our part, or a dis- 
position to obstruct the proceeuings of tiiis 
court; but we ask them to do so upon an im- 
portant ground, and that is as we tiudersrand 
the case. As they have attempted to make it 
out, they charge guii'^ upon Judge 
Frazier, as being concerned in an 
attemot to defeat legislation in tiie Stae of 
Tenne-sce, to obstruct the proceedings of a 
branch of the Legislature. Now, whether joii 
are to make out that he wos a member o( the 
con sp racy for this purpose, by showing that 
everybody in the State of Tennessee must have 
known whatever took plai'e and that there- 
fore Judge Frazier must have known that 
tills stati ol txcittment and agitaiion 
existed because everybody in the State of 
Tennessee knew it, or "wheiher you underi'alve 
to show by proof thdt Judge Frazier was in 
concert with membe>s of the Legislature, or that 
ho was in counsel with citiz-'Us of Nash- 
ville or the citizens of the State, is whody 
immateri.al to us. You are trying to maUe out 
tliathewis aiding and a'ietting to break up 
the Legislature or to defeat legislation. Th .t 
is what IS attempted to be provtd againsthim. 
That is the charge as I understand it in these 
artides of impeachment, and the question is 
how is that t > bs made out, and by whom is it to 
be made out? They seek to maki; it 
out 111 one way o- another. v;iiy in 
troduce all this testimony? Why talk 
so much aboiu a conspiracy? It there was no 
conspiracy, if tliere was no common purpose, if 
t-ere was nothing but the simnle act of Judge 
Frazier. why was all this other tstini'jny intro- 
duced'? They introduced it, I apprehend, to 
show that he act';'d with those who were at- 
tempting to defeat legislation. But they must 
prove that he acted in concert with other per- 



sons for this common purpose. They must 
show its counecti-m. It will be competent for 
them in argument to prove, if they please, or to 
takf it fcr granted, if they like, that everybody 
in Tenness e knew the situation of i^U'airs, and 
that herelore whoever put his linger in anv way 
into this excited state of confusion was guilty. 
That is all legitimate argument for them ; not 
that it will prove much, perhaps, when we 
come to the real merits of the case, and what 
was done by Judge Frazier, but 1 say it is lesrit- 
imate for them so to argue. If they cho;e to 
abandon thi tistimouy in regard to a conspira- 
cy, and in regard to tlie met ti"u;< of anybody else 
with Judge Frazier belor' this liabei's corpus 
was tried, then be it so. Wc will procf'cd with 
our testimony, or we will make soaie motion m 
advance of procecdiiij; wi*h < ur testimony, one 
or the other, xlll we asl: is that thi'y sliiU con- 
clude their c se. because they give us notice 
thatth*-y intend to produce t roof otacauous ot 
whii'ii Judge Fraz er w;:S a partaker, and a 
caucus for the purpose of preventing the action 
of the Legislature. 

Mr. JMai nard— I suggest, as one court or the 
other das to wait, amras this is a court higher 
than the other, that if there is to be any wait- 
ing it sji luld be done by the inierior court. I 
think the President snou'd instruct the execu- 
'!</• ofli'erof the com t, the Sergeant-;it- Arms , 
to go and imperatively n quest the gentleman's 
attendance belote this tribunal. I hitv^ no per- 
sonal feeling about it any way. It s<-enis to me 
that the precedence is due to this co.rt rather 
than to an ordinary court of the country. One 
of the other witnesses that is spoken of. Judge 
Butler, has not arriveil ni the city, and we aie 
unable to say whether it a\ ill be possible for 
him to comeor not, as we have no information 
and no return oi tlie subprena. 

The Clerk here said thnt Judge Butler was 
subiiQjiied on the 15th, but t-iat no return had 
been made. Mr. Maynard then asl^ed that the 
President instruct the Sergeant-at-Arms to go 
after Jii'ige ^^hatie 

The President— The Ser?eant-at-A.rms will 
go and instruct Judge Snaae to come to the 
cou t. 

Mr. Shane soon appeared iu the court and was 
then examined. 

TESTIMONY OF WILLIAM SHANE. 

Judge William Shane was then sworn as a 
witness on the part of the State. 

Question by Mr. Maynard— -Your name and 
residence"? A. My name is William Shane; 
Nashville, Tennessee. 

Q. Were you living here in July, 18G6'? A. 
Yes, sir. 

Q. In what part of the city was your place of 
business? A. My office and residence was at 
No 50, Cedar street. 

Q. What relative position did thst office oc- 
cupy to Judge Gaut'.-? at that time? A. My o.f- 
flce was nearly opposite tt that occtipied by 
Judge Gaut at that time, mine being a little 
below 

Q. I wish you to st ;te whether, during the ex- 
traordinary sess on oi July, ISiiS, you saw Ihe 
accused here, .Judge Fr.izier, and others passing 
in and O'lt of that office"? A.. To the best of my 
re oUection I did. 1 could not say whether it 
was during the pendency of the trial or alter- 
Wiirds, with a certainty. 

Q. The trial of the habeas corpus? A. Yes, 
ill. 

Q. State wh"ther t;liis was once merely, or 
whether ;tw:is irequently? A. Icouldnot'state 
positively that I ever remarked it but once. 

Q Who was going in or out? A. I saw some 
counsel engag'd on the part of the members of 
the Legislature that were arrested. 

Q. What time m the day was that? A. It 
w.ss late in the evening. 

ti. Who were the counsel, according to your 



98 



recollection? A. 1 think IrecoUect Jiulje Brien 
Judge Gaut, Mr. Colyar and Mr. Speaker Heis- 
kell. 

Q. Do you ri-collect anv other members ot 
the Legislature? A. I do not. 

Q. What is your impression about having 
seen them at other times than this one time 
about which you have spoken? A. I could not 
state that I ever noticed it but once I doubt- 
less have seen the counsel go in and out nhere 
Irom Judge Gaufs ollice, but I do not know that 
I noticed it butoni' time. 

Q. During that time did you notice Judge 
Frazier passing in and out? a. Judge Frazier 
Irequented Judgis Gaiit's otlice, init I do not 
recollect about that time particular.y. 

Q. Was Judga Frazier pussiug about the 
citv? A. I thii.k he was, sir. 

Q. Well, was he acquainted in the city? A. I 
suppose he w as. 

Q. \V ho were the per ons with whom he 
associnted and wiih whom yoi saw him in con- 
versation and walking with? A. I don't know 
that I ever remarked paiticula ly who his as- 
sociatt s were. 

Q. Did you see hira with Mr. Colyar? A. I 
could not say positively. I -doubtless h ve 
seen him with Mr. Colyar, but have not re- 
marked it particularly. 

Q. With Judge Biieu? A. I don't recollect. 

Q. With Mr. NeilS. Crown? A. I could not 
say, I never noticed i articularly with whom 
Judge Fraziec associated. 1 doubiless have 
seen huu with all the gentlemen mentioned, 
but I don't know as I cou d sav cert inh . 

Q. Did you a-sociate with hiai p;.rticularlv 
yourself? A. No. sir. ro grear, deal. Our ac- 
quaintance was somewhat Imited 

Q. "i on say that he was a great deal in the 

■ city passing about and well acquainted her..? 
A. Thati-. my impression, sir. 

Cross-i:ic<tmmation.— Question by Judge 

■ Gaut— State. Judge :~hane, what were Judge 
Frazier's habits You sav he Wiisa good de.d 
ill the city. Was he much'in the ciiy only when 
his o lurt was in session? A. My impr-.-sion is 
that he resided in the city, but It is whoilv an 
impves-^ion, i revious to that. Buc a', the "time 
we speak of he resided in the country, I think 
I am not positive. 

Q. Did Judge Fraz'or ever reside in Nash- 
vire? A. I th .ught he stayed in Nd,bh- 
ViUe. 

Q. He stayed there, but where was h's fam- 
ily? A. Well, his family resi ed near— 

Q. First in Rutherfo d county, ann after that 
they moved down here, withi i live or six m les 
ot town? A. Well, s r, I don't know. I sup- 
pose he resided here befoi'e his family was 
moved 1 1-0 m Kutherford county. 

Q. I don't recollect when the term of the 
court commenced, bui it commenced sometime 
intheLUlor winter. I will ask y,ui, Judge 
Shane, whether Judge Frazier did n t pur up a 
b'-'d m my ol^iee, and ^le.p ther .^ and v.hether 
he did not have his m-als brought to him be- 
cause his farailv was -till liviog up in Ruiher- 
tord county, and whether he did not hold one 
session of court r here? A Yes, sir. That is 
what I alluded to when I said he resided iu the 
city. 

Q. Then after his 'amily moved down to 
Davidson county, then be went home every 
night after the co re adjourned? A. That is 
my impression. I think it was near Glenclifie, 
tor I saw him a-o off, and a servant with a buggy 
was waiting for him, as I su|)|ioseii. 

Q. And that bed he had in theoilice remained 
there a good long while, didn't it ? A. I never 
remarked the bed remaiuiug there. I recollect 
of Dr. lluffhes being there. 

Q. I'r. Hughes ^lept in the bed Avith Judge 
Frazier, didn't he ? A. I don't know, sir. 



I Q- Unt.l his family moved down here, while 
he was holding court, that is after he had ptr- 
mission to go into the otlice and put up a bed, 
didn't he stay there? A. I think I saw him 
there fr»'quetit;y. 

Q. Well, after his family moved down here, I 
will get you tostite whether or not it was his 
habit to cnme in in the morning and attend his 
court and go out home in the evening? A. 
Ihat IS my impression. 

Q. Did you see him often in my office 
alter his famiy moved to Diivids.->n county? A 
I don't recollect. I don't know when h's family 
movedhere. J saw him frequently cjllinsr into 
y' ur office. I don't know that I remarked it 
p.ii ticularly alter he removed to the country or 
not. •' 

Q At the time you speak of about seeing 
■lu'g'- iyazii^r and Judge Brien and Sueaker 
Heiskell at my room, state it that was not after 
the time that the Hon. Jno. Norman had been 
appointed -Speaker ^j'o iemr A. I could net state 
that. I recollect the occasion, but don't recol- 
lect the time. I don't recollect whether Mr 
Meiskell was acting Speaker at that time or 
not. 

Q. You don't recollect whether it was after 
the Hon. Jno. Norman h;id been appointed 
Speaker pro tern, at the particular time you al- 
lude to? A. No, sir, I do not. 

tj Judge Shane, I will ask you whether, af- 
ter the habeas corpus ease was all over, you 
didnt come over and have a conversaiion with 
meat the door about there being some inten- 
tion to impeach Judge Frazier lor that decis- 
ion? Did we not set at the door then iu the 
evening as the weather was warm? A. I 
don't recollect any such conversation, though 
we might hive had it. I think we probablv did 
have a conversation about the legal qutstion 
about th.'it time. 

Q. I only allude to that wifh a view of re- 
freshing your memory as to the time, and if 
there had not been some gentleman in your 
r >om in consultation with you about the legal 
que-tion, and after they lett, you and 1 took a 
chair and sai^ in front of the door, as the weath- 
er was waim? A. I don't recolhct that occa- 
sion. 

Q. You don't remember the circumstances? 
A No, sir. 

Q. 1 remember that we had a conversation 
upon the subject. You don't remember wheth- 
er ii; was the same- evening that you al ude to 
seeing Judge Fiazier there or not? A. No sir. 
I do not. ' 

Q I will ask you if you can recollect, or if 
noc to give your best impression, whether the 
day you allude tote ling the^e gentleiuen was 
not after the decision of thehabea- corpus case? 
A. I would not undertake to say. Al! I can 
undertake to say is that it was about the time 
tnc excitement and discnssion was going on. 
Whether it was after the decision, or before, or 
during the pendency of it, I don't kuow, because 
I don't remember. It was about that time. 

Q The circumstanre you ani mvself were 
talking about does not fix it well enough in 
your mind to state whether that wys before or 
alter the trial? A. I don't rerollect particular- 
ly the conversation you allude to. But 1 kuow 
We had aconve.Sation. 

Mr. Maynard here stated that the absence of 
Judge Butler Wcis without the consent of the 
counsel for the pr.^secutijn, and even without 
their knowledge. He also stated that the evi- 
dence for the prosGoution would here be closed, 
and if that witness appeared, his testimony 
would be offered. 



99 



TESTIMONY FOR THE DEFENSE. 



The counsel ou the part of the State having 
announced that their testimouy was closed, 
Judge J. C. Gaut was introduced as the fii'st 
witness for the respondent. 

TESTIMONY OF JUDGE GAUT. 

Question by Mr. iiwing— Your name and res- 
idence? A. John C Gaut. I reside in the city 
of Nashville, Davidson county. 

Q. Judge Gant, liow long have you been ac- 
quainted with Judge Frazier? A. I have be-jn 
intimately acquainted with him since the spring 
of 1839, When 1 commenced the practice of the 
law in ICast Tennessee, after getting a license. 
Judge fiazier was then a practicing lawjer 
when I obtained a license, and we practiced law 
on the same circuit together until 1853, when I 
was elected Judge of the Circuit Court, and 
then he practiced as a lawyer m my circuit, as 
longas we heldcourts in East Tennessee, Ouriug 
most of the war. 

Q. Was there any family connection between 
you and Judge Frazier? A. Judge Fr;izier's 
wile and my wife are second cousins. As I un- 
derstand it, their faJiers were full couslis. 

Q. Will you state whether Judge Frazier 
made your olUce his stepping place, and the 
circumstances under which he did so previous 
to the time of this habeas corpus irial? A. 
Judge Frazier was not at my oflice often until 
he commenced a terra of his court. I don't re- 
member when ttie term of his Criminal Court 
began, but I know it was cold weather. It 
must have been the last of 1865 or the first of 
18G6. I gave him permission for his wife to 
send a bed down to the oflice. I was in bad 
health, and could not occupy the oflice con- 
stantly myself. I gave him permission to bring 
a bed there and to put it up in the office, and 
he stayed there during that teim of the court. 
He said it would he cheaper for him to stay 
there than at the hotel; that on account of his 
straitened condiiion his salary would not sup- 
port his family without economiziug all he 
could, and that that would save him some 
Troney, and he would get his meals. I gave 
him permission, and he remained there and 
slept there during the term of the court. After 
his family moved duwn though, and they may 
have moved down before that term closed, or 
after his family moved down, and after that 
term of the court closed, he stayed at home, out 
in the country somewhere. I have never been 
to his residence. During the time he was occu- 
pying the oflice as a sk-eping apartment he 
had a table there, and his paper, and his ink, 
and did his business there. Tlie bed, however, 
remained there until along this spring before it 
was taken away. 

Q. Will you state what time it was that 
Mr. Mulloy says that Speaker Heiskell and 
others were at your oflice, and what you and 
Judge Brieu were doing there? A. Judge 
Brien was counsel for J. H. King, adminis- 
trator of Charles L. King, deceased, of Deca- 
tur, Alabama, and I was counsel for Alexander 
Kennedy, of Knox county, and William \Yhite, 
of Hawuins county It was a petition flleci 
by Chas. A. Fuller in the Federal Court. The 
cause w.ts taken from the Circuit Court to the 
Federal Court. The controversy was about a 
lot of cotion which we claimed was wrong- 
fully seized : and I recollect that Judge Bruu 
was at my oflice; and I think that theie was a 
controversy about ttie division betv.een our re- 
spective clients. They ultimately agreed upon 
a division, but Judge Harrison, counsel"for 
Mr. Fuller, did not want to let us have the 
cotton unless our clients woi Id sign a paper 
releasing Mr. Fuller from all responsibility. I 
recollect that Judge Brien was there; and also 
Speaker Heiskell; and I am of the opinion that 



Judge Frazier stepped in there that eveni,ig. 
I recollect that Mr. Mulloy came in and spoke 
to Judge Buen about somethinc-, I don't know 
what. But that was after the liecision of the 
habeas corpus case, and while Speaker Heis- 
kell was "Oing about here, not doing anything 
as I understo ■(! it. I understood from the 
newspapers that Judge Morman was Speaker 
pro tern. 

Q, Was Judge Frazier at your oflice after the 
anirounceiT>ent of ihe dec.sion of the habeas 
corpus case, that you recollect? A. I don'r: 
know that he was at my oflice before the writ 
was issued. I'.ut he was at my oflice on the 
eveiiingof the I9th that Williams wa- <lischarged 
Q. htate under what circinustunces ? A. 
Well, the oflicer had taken Williams, and some 
of us sent for him; I don't rememl cr w lio. 

ti. "What was he doing at your oflice that 
evening? A. Well, sir, he wrote out there in 
my office th^it evening the discharge of 
Williams, and rendered tiis judgment at the 
table he had I'een accustomed to write at. 

Q. Did he have any other conversation with 
vou in regard to the case ? A. M ever. I never 
had a M'ord of conversation with him about his 
opinion, in no 'orm or shape, until after it was 
Jill over. I thought that he bad decided the 
case right; but he thought that Wiliiams and 
Martin had acted wrong ; and if there had been 
any law for it he said that he would like to 
have them stay there and lie punished for it, 
because he thought that they had not acted 
right. He told tnem so. 

Q. State in regard to the evening spoken of 
by Judge Shane, what evening that was, as 
well as you can make it out, if j-ou know. A. 
Unless Judge Shane saw Judg"e Frazier the 
evening thas he speaks of, theeveniug that Siv. 
Mulloy speaks ot, and that I speak of, I don't 
remembtr it. I remember the circumstance 
that Judge Shane came over to my office that 
evening, and of our having a talk alt r these 
other parties had all left the oflice. It was very 
late. 

Q. Was not that after the habeas corpus case 
was decideii? A. Yes, sir, that was aiter there 
was a talk of impeaching Judge Frazier for 
his decision. 

Q. Do you know whether Speaker Heiskell 
and Judge Frazier were iu your office? A. I 
don't recollect of Speaker Heiskell being there 
at all thai evening; I mean the evening ^poken 
of by Mr. Mulloy and Judge Shane. But 
Speaker Heiskell very frequently called at my 
oflice because he i oardeu at my house, anfl 
afier Norman was appointed Speaker at the 
extra session pro tern. TUere was scarcely a 
day that Speaker Heiskell did not come down 
there and sic in my office, generally in the 
evening. 

Q. When you and Judge Brien were to- 
gether, did you ever hear Speaker Heiskell and 
Judge Frazier have any conversation in regartl 
10 the habeas corpus case at ali? A. Not iu my 
life, sir. 

Q. They were all in your oflice at that time? 
A. They were all there. 

Q. Did they have any discussion at that time? 
A. None that I recollect. 

Q- At that time Mr. Mulloy came in and Mr. 
Brien? A. I recollect that Mi-. Mulloy came in 
and that Judge Brien was close to the door and 
close to my desk, and something passed be- , 
tweeu tnem which didn't attract my attention, 
because I suppo;ed it was someihing between 
lawyers. I don't remember of Mr. Howell 
Webb being in there. He may have been, be- 
cause Webo and Merriott had their oflice ad- 
joining. Sometimes they came to examine my 
books, and sometimes they took my books out, 
and I may have done so in their office. 

Q. Do you recollect seeing Judge Frazier at 
that office alter the trouble in the Legislature 
commenced until he issued the writ of habeas 



100 



corpus? A. I don't remember of Judge Frazier 
toeing at my office at only the times I have 
meutionad. He was there but very seldom 
after his family laovod down, and after that 
term of his court. I don't remember of his be- 
ing at my office only at the times I nave men- 
tioned. 

Q. State under what circumstances, so far as 
you know them, the writ of habeas c ir|ius was 
issued by Judge Frazier? A. I was sent lor by 
some person, I don't know who, to go to Mr. 
Colyar's ollioe. I went there aud v\"as informed 
that a \^rit of habeas corpuswas going to be taken 
out. Mr. <;olyar drew the petition for a habeas 
corpus. Then something was faid about a 
judge to grant it, and I am not certain, but my 
impression is, that Judge M. M. Brien was 
spoken of aud that be was not in the city Tiien 
there was an inquiry for Judge Frazier. I saw 
his brother. Senator Frazier, on the tt'eet, and 
he told me that Judge Frazier was at the ollice 
of the Crimini.l Court. I uent down there, and 
Mr. Diggons. the Clerk, told me that Judge 
Frazier was not there, but he supposed I wuidd 
find him at Mr. Stubbletieid's otlice, as he aud 
Mr. Stubbltfiekl hndgoue out together I went 
to Mr. Stubliielleld's office, and found him and 
Juiigc Frazier there togchsr. I don't remem- 
ber what they V\yre doing. 

Q. f lid you know that Judge Frazier was in 
town before ihat day ? A, I did not know until 
I made inquiries. Some one told me aiterward 
thit he was. I tobi Judge Frazier that 1 
wanted him to go to Mr. Colyar's office, ihat a 
petition lor a writ of habeas corpus for "Williams 
was being prepareil. "ISow," said he, "you 
are just going to get me into trouble," Well, 
sai'i I, it is the duty of a judge to grant the 
writ ; it is a constitutional writ, and you have 
DO right to deny it. Every man has to do 
things he don't like to do. After awhiie, he 
got up aud said : " I reckon I will have to go 
and see about it," and made soine remark to 
Mr. Stubblelield to goaloug, that he would g't 
into troul)le, or something to that effect, and we 
ail three went dosvn btairs, but I don't ihink 
that Mr. Stubblelield went with us to Mr. Col- 
yar's office. We went theie and the petition 
was sworn to, and then I read that jjrovision in 
the constitution which shows that it is a consti- 
tuti;nal Vy-rit and couid not be suspended ex- 
c-^pt in cases of invasion or insurrection, or 
something Of that sort, and then 1 turned t> 
where the Code treats upon that subject Hnd 
read to him what wore the constquences if he 
refused to grant the writ. Aiterwards, he 
granted the writ. I saw nothing more of hi m 
uutil we nict in ihe courthouse. He granteri 
the writ and ordered a return to be made. I 
think the writ was granted on the I6th and re- 
turned the next (»ay, in the forenoon. I sawliim 
then on the bench. I never had a word ofcon- 
vei'sati>u with \rm except as a lawyer to a 
judge in arguing the cause, until it was decided. 

Q. Did Judge Frazier manifest reluctance to 
grunt the writ or to have anything to do 
with it? A. He certainly ilid; hut I insisted 
that it was a constitutional writ, and a legal 
writ, and tried to convince him of the fact by 
reading the constitution and the provisicns o;' 
the lav\f to him. 

Q. Do you know of his having talked or had 
counselor mingling with anybody on this sub- 
ject previous tu that time or during the pen- 
dency of the trial? A. 1 have no knowledge of 
it either directly or indirectly. 

Q. You were one of the counsel in the case? 
A. Yf s, sir. 

Q. On the trial of the ha^^eas corptis case, 
didn't you as couuse' for Williams, insist npou 
his being brought before the court, and what 
did Judge Fr izicr do in regard to that ? A. I 
did, be aus"* I believed it was legal and consti- 
tutional, nnd told the Jti'Igc that he had no rijjht 
lo ha^e'iiecase arguei), or its merits const l- 
cred, in the absence of the prisoner; that I had 



never known such a thing to be done and that . 
it was a violation of law, but he didn't do it, out 
of deference to the other side. 

Q. Didn't you read the provisions of the Code 
to him? A." I did, and thought then and think 
now that he had no right to try the cause with- 
out having- Williams there. I never had seen it 
done in my lile, and never saw it attenijited to 
be don. except once in 1838. while General 
Scott was removing the Cherokee Indians and 
Judge Keith won dnot hear the case, but made 
him oring up the prisoners : but Judge Fr.-izier 
took the other course, and perhaps it was belter 
under the circumstasices. 

Q. What did he siy about that, or did he in- 
duce you to waive that? A. He said it ought 
to be waivtd for the present, and that the legal 
question ought to be investigated so as to see 
what was the If w in the ease. That is the sub- 
stance of what he said. The exact language I 
cannot pretend to repeat. 

Q. During that trial, or after f^e cause was 
submitted to him, did you see any evidem-e on 
the part of Judge Frazier of e-xcitt-ment against 
the f^egislatuie ? A. I saw nothing that con- 
vinced me of that at ail. I believed he was 
against us if he could be so, but I had confidence 
tliat he was on our side, and I had confidence 
in his intearity that he would decide for us. 
But I believe from what occurred on that trial 
that his feelings wtre against us previously, 
but that Wiis only a supposition of mine, and 
w^-s ( ot derived from any ronA'ersation. 

Q. D dn't he say u|ioa one occasion that he 
had no sympathy with tiiem ? .' . Y'es, sir, but 
that was after it wis all over. He told me he 
thought they oucrlit to stay there for their be- 
havior, but that was after the trial was over. 

Q Arc you aequ iinted with the general ch'ir- 
acter of judee ><razier? A. J think, sir, tliat I 
an well acquainted with it, and have been fur 
twenty-eigat years. 

Q. Well, sir, ; tate his character as a Judge, 
so lar as you know it. A. As a man and as a citi- 
zen, 1 don't think that there was any man in the 
State of Teuiiessee that maintained a better 
cnar.icter than Ju'lge Frazier for sobriety, and 
for inte:4ri.ty of purpose, both as a lawyer and 
as a (.itizen. WhenI moved here I founci Judge 
Frazier here as a Judge. 1 had very litQe 
busintss in his court, but I frequently went in 
there, and I thought he took very great pains; 
that he was cautious, a'ld tried to give every 
person, white and black, the benefit of the law. 
I think that was his character herp at this 
place, but as a Judge I practiced before him 
very little. 

Q. Do^oiik^ow anything of the circum- 
stances under which he came to Rutherford 
county, and removed from his former residence 
in .Ka«t Tennessee? A. I was not at Fikeville, 
in Sequatchie Valley. I only know ol this 
from the general report in the country, and not 
personally. 

Q. Do you know what his general reputation 
was as a'man loyal to the jiOvernment, as a 
Union man throughout the war? A. I know 
what his feelings were upon that subject up 
uniil July or Xovember, 181)2. The last court 
I ever held, the last permit the Confederate au- 
thorities ever gave me to cross the Tennessee 
river, when 1 held a court at Washingion, Rhea 
county, Tennessee, 1 Know he was there. As 
we walked from the com t house he said he 
wanted to talk with me, but did not think it 
was prudent for us to talk tijere, and he want- 
ed me to go to his sister-in-law's, and we went 
t lere, ami tallied these diiScuities all over until 
a very lite hour in the night. The lady was a 
strong Union lady. 

Q. Wlitt were his sentiments? A. That the 
rebellion was wrong, destructive of the best 
interets or the country, and that it would end 
in ruin to the South. 

Q. Do j'Oti know of any change in him since 



101 



that time? A. None that I know of. I never 
heard of his having changed. 

CroM-i:xaminatlon.—QMestio-a by Mr. Trim- 
ble— i'ousav you assisted in getting up this 
petition? A. Yes. sir. 

Q. It was written by Mr. Colyar? A. Yes, 
sir. 

Q. Wlio applied to j'ou? A. I don't know 
■wlio oame to nie to go to Mr. Colyar's room 

Q. "Who employed you? A. yieV, sir, I was 
jnst asked by the friends of Williams because 
he was not pre?ent. 

■ Q. You volunteered then? A. Well. I sup- 
pose you could Cull it voluntefi-ing. Wil ians 
told me afterwards he would pay nie when he 
w;'S able. 

Q. You went immediatelv to Uolvar's ollice? 
A. I did. 

Q. He had wvitfen a petition? A. No, he had 
not written the petition when I got there. 1 
believe, though, that he had commenced it. 

Q. That periition states that there was not a 
quoritm. You i-re a.judg.> of law; is that the 
proper way to state facts? Wasn't yiat both a 
question of fact and of law? A. WeU, I suppose 
it states it I suppose it Avould be stated as a 
matter of fact, ana might be a question of law 
too. 

Q. Well, wouldn't it involve a question of 
law too? A. To sfate that there was not a quo- 
rum involves the fact. 

Q. Well, wouldn't the proper way be to st.ate 
ttie fact and let the Judge say whether there 
ivas a quorum? A.. Well, I don't know It 
might be stateil that way. and the proof might 
be left for the Judge t > consitler. 

Q. But I ask ) ou as a lawyer, accustomed to 
prepare papers, if the tacts oiight not to lie con- 
cisely and clearly stated, and to leave the whole 
matter to the Judge? A. I believe, Mr. Trim- 
ble, it is usual m iietitions for a writ of h ibeas 
corpus o state the fact that the party is i legai- 
Iv restrained of his linerty, without stating 
all tlie other ficts; at least tliat is about the 
character of all the petitiors ever presented lo 
lae. 

Q Then, v.iien tlie party who applies for a 
petition swears thattnere is not a quorum, what 
does he swtar to? A. Well, I should think that 
if he swore that there w^s not a quorum, he 
would swear to a matter of fact. 

Q. Isn't it his judgment of a law question that 
there is not a quorum? in otlier wot (l-i, don't you 
state the number of persons present deiinitely 
and distinctly, and leave tlie .Judge to draw his 
own infereT(;e as to whether there is a quorum 
or not? Wouldn't that be the proi)er mode of 
proceeding? A. If he were to state the uuiuher 
mat were there, and no more, I should tliink 
that tijen the qisestion of law won d be lefo for 
the Judge to determine whether there was a 
quorum. 

Q. When the petitioner swears that there is 
not a quorum, doesn't he undertake to decide 
the question of law himself, and <loesu't the 
Judge permit the petitioner to state the ques- 
tion as to whether there is a quorum ? A. I sup- 
pose that ii the petitioner swears to that, in 
that way it is a matter of law and of fact too. 
Q Didn't thaf- petition show i hat these men 
were members of the Legislature ? A. I should 
think so. 

Q. Didn't it show that the members were in 
their own hall ? A. I think it shows tliat tney 
were members of the Legislature, and that 
these men were prisoners. 

Q. Well, if was your opinion that you had a 
light to inquire into a quorum ? A. That was 
my opiniou. 

Q. You say that you regarded the habeas cor- 
pus as a cotistituiioual writ ? A. Except in ex- 
cepted rases. 

Q. Is it to be granted in every possible case ? 
A. No, sir, bat it must be granted except in 
those cases prescribed by law- 
Q. Suppose, for instance, as was stated in the 



argument btforeJud.{rc Frazier, sitting as a 
Judge of the (Jrimiual Court, that his Clerk or 
a member of the bar slioidd attempt to bre.ak 
up his court, and the Jutlge should order the 
partyintj custody tor contempt, and some 
friend should slip around to the .Judge of the 
Circuit Court, and ask lor a wiit oi habeas cor- 
pus, would not that be an exception? 
Mr. Kwiuff — I object, to that. 
Mr. Trimble — I insist on it. 
Mr. Ewing— It is a matter of liw. 
Mr. Trimble — He assumes that wiienevor an 
application is made fo'- a writ of hiibeas corpus 
it must be granted. Now, I want to bring him 
to the test an! to' take so-ne test rases, and see 
what his judgment of the law is u} on that class 
of cases. And I intend t ) suppose another. 
Suppose, for instance, that a man is taken be- 
fore the Supreme Court on a charge of luurder 
or treason, and he is found guiity and an appli- 
cation is made to'a Circuit Judge for thewrit of 
habeas corpus, whether the writ must necessa- 
rily be granted under those crcumstances, and 
why it, should be grant d in this cise where a 
co-oidinate branch of the government is sitting 
in its own hall, with its own offieers and under 
its own rules. Why, sir, what becomes of tue 
independeiioeof your Legislature? I wish mo 
test Judge Gaut's judgment upon a matter 
upon which I think he put his foot in the 
wrong place, and that it was, to say the least, a 
blun.rer. 

Mr. Ewing— I don't think the gentleman has 
a right to stite abstract questions of law and 
ask Jttdge Gaut's opinion upon th' m, I don't 
think .itulge Gaut did put his toot in it. 1 don't 
think that he made any blunder at ab ;I think he 
did right and I think Judi.'e Frazier did right. 
I thin IS, sir. a man has a right in his petition 
for a writ of habeas corpus to state tiiat there is 
a pretended court si^tll■lg if he pleases; that it is 
not a court; tha^ he is held in cu-tody; that 
there really was no court, though there might 
have been one that pretended to be a court; to 
state I hat he is held in custody ; «nd that he is 
held illegally, and that he has a rii^ht to h^ive it 
decided. And I a])peal to the constitution and 
the laws, sir. 1 say if there is an exception, 
show it. There are exc^-.jti'ns, sir; they are 
written down plainly, but this case did not 
come wiihiu these exceptions. Whether the 
sta'ements contained wiihin that pe'ition are 
true or not is another question; but when these 
stilt' ments are made and sworn to, and a Judge 
is called upon, then bow can the .Judge say, ex- 
cept iU excepted cases, "I wdl not issue the 
writ of habeas corpus" Avhen the petitioit 
brinsrs the case within the law. I object to that, 
sir. It is a question asked upon an abstract opin- 
ion in regard to a possible case, and the opinion 
of .Judge Gaut as a lawyer is asked upon it. 

Mr. Trimble— Judge Gaut is asked, and has 
been permitted by the counsel on the other side, 
to state thit he anrounced to Judge Prazier 
that this was a constituiional writ, and that it 
must be granted, and ihat Judge Frazer gr int- 
ed it. Now I propose to examine into the 
weight of that authority; that is my objection, 
and" I desire to show thut there are oases 
wnere the writ shmild not be gi anted. 
The section whicn provides the penalty if the 
.Judge refuses to sra^ t the writ is intended to 
secure liberty lo the citizen, and it is the duty 
of the Judge in proper cases to grant it. Sec- 
tion's 729 of trie "ode reads: "It is the duty of 
the court or Jitdge to act upon sucU applica- 
tions instnnter. and a wrongful and willful re- 
fusal to grant the writ, when properly applied 
for, is a misdemeanor in ofll.^e, besiiles subje<'t- 
ing the Judge to damages at the suit oi the 
party aggrieved." A wrongful and willful re- 
Insal constitutes a misdemeanor. I suppose 
that a wrongful and willful granting of the v.'rit 
may constitute a misdemeanor as it does in this 
case, and a wrongful and willful refusal alone 
constitutes a misdemeanor. Tiien a wronirful 



102 



and willful granting will constitute a misile- 
meanor too. I propose to show by this geutle- 
mau learned in the law, who has acted himself 
in tramplinsf under loot the rights and i)rei'0g- 
atives of the sovereigu legislatuie, that he was 
mistaken. As he has given his opioiou here 
upon the constitutionality of this writ, I desire 
to ask liim whether it an appliciition had benn 
made to Judge Lea in the case I supiiosed, 
what would have been his duty? It is lor Judge 
Frazier to organize h's own court, to maintain 
order in his owu court. It is noc my business to 
do it. The law was intrusted to his hands He 
may abuse power, and so may anybody eUe; so 
niav I, but in this cise what Will Judge L,ea 
decide at once? Under such circumstances 
would he have gone to Judge Frazier's court, 
broi-onitnp, and relensed his Clei-k, or his 
member of the Liar, or his Sheriff? This would 
have bnen like a uull in a china shop. 
Suppose tliat a man is on trial in the 
Supreme Court for murder or treason, 
and some offlci"US person appeals to the Circuit 
Judge or the Criminal Judge for a writ of 
habeas corpus and mites out, the case, on the 
face of his petition, statinir' that they have this 
man ill custody wrongfully, that 'they have 
iiot a'iuorum in that court, and goes to Judge 
I'razier. asking that the writ be issued and that 
the i^arty be taken from the custody of the iSu- 
preme Court; what would you do in that 
case? Mow, has the Supreme Court anymore 
power or au hority than your iii gislature ? 
Not a whir. It is the highest hranfh of the 
State — res ton^i he for its acts t) the people of 
the State., Would tJie Supreme Court have been 
treated with this indignity ? Pe-haps the Su- 
preme C'>iirt might be so .reated if the times 
were out of joint and if the minds oi the pi-oijle 
throughout the country we e darkened. I ask 
whether ihat could be done in the courts. 
Here is youi- Governor's proclamation under a 
clause 01 the constitution — a plain clause calling 
the LiQ-isla ure together, anu you are rest on- 
sible on y to your constituents. Tiie Govtrnor 
resolves to exercise his power and he convenes 
tne Legislature as he had the constitutional 
right to ilo They are called to meet on the 4tn 
01 July, 1866. Bestaies theobject for convening 
the Legislature — thft great high object, the 
adoption or reji ctton of -.m amendment pro- 
posed and adopted by the Congress of the 
United Siates and intended for the reconstruc- 
tion of the country. That Legislature assem- 
bled. It was the duty of every member of that 
Legislat re, in the discln\rge oi his duty, as a 
citizen, !is a rcpres«niative and a moral being, 
tocuiueauil fake his place in that House of 
Representatives and stay (here, whetnef he 
voted for ihe ;>nieiidment or not. Jt was his 
duty to come as an orderly citizen, as a lavv- 
abidiiifT citizen ?.nd a law-loving man, to take his 
seat, and if he did not do it he vvas guilty of se- 
ditious conduct, guilty of a breach of his du- 
ties as a citizen aid a Representative. The Leg- 
islature organized, and it Ma- kiiowu us an or- 
garuz^.'!] liody. There were 43, 46, 5i mmieis 
assembled in the House of Kepresei.tat vts in 
their places. They had a rule regarding ab- 
sent me nbers. I'hey are knovAU to be m tiie 
cit5'. Steps are taken to put au end to this se- 
ditious conduct, and bring them to their >eats 
Judge F;azier is a gentium m of gener d good 
charactir; he is a 'lanof understanding; im is 
a man of legal a' il t y ; he is au intelligent gen- 
tleman, living in the community and renting 
the p ;pcrs. He had a full knowle 'ge ot all 
the->e facis. Now, how came he, uuuer these 
circumstances, to grant this Wiit of hiljeas cor-- 
pus? But Judge Frazier knew that these ab- 
sent members were hiding, and going about 
from pillow toi'o.t Every intelligent man tn 
the Stite of Tennessee knew this, and yet, in 
my opinion, he did not hesiate To invade the 
sacred lights and privileges of the Legislature. 
These rights and these privileges are not grant- 



ed merely for the sake of persons sitting tem- 
por.irily in their seats. They are granted for 
the benefit of the people of Tennessee, to-day 
and I erealter, the jieople who live under a free 
government. May it please the court, I think 
I have the right to test Judge Gaut. He is one 
of the counsel in the case, and he is upon the 
stand. He has given his oiiiniai here uixtn au 
abstract prop isition, and has said th t it was a 
coiistitution.-il right, and I wish to show excep- 
tions to it, and I think he will admit them. 

Judge iirieu— I do 't see why counsel on the 
other side should consider it necessary to make 
this extended argument of the question upon a 
simple legal proposition. They have asked 
Judge Gaut his opinion uponau abstract piiu- 
cipleof law. No witness can give an opinion 
of that sort. \Ye object to the ciuestiou, and 
then they go into the argument of the question 
and consider its merits. They ask as t^ the in- 
nocence or guilt of Judge Frazier. We ask no 
such opinion at all. 

Mr Miyuurd— Will the Erentleman allow me 
to iuteriup^ him amoment? Did not the wit- 
ness say that he went to Judge Frazier and told 
htm that this was a constitutional writ, and 
that It must be granted? 

Judge Brien — We did not ask his opinion, but 
the gtnileman on the other side says, suppose 
some one had applied to a Judge io grant a 
writ of habeas corpus to enjoin the Supreme 
Court from proccc' ling in a certain case. I sav 
t icre may be certun cases in which it is rijrht 
that this should be done. By the Constitution 
and law of the State of Tennessee it requires 
three judges to constitute thi Supreme Court. 
Now, suppose only one of them came to the 
court r.iom, and undertook to lietermine as to 
the rights and liberties of one ol the citizens of 
the State. 

Mr. Trimble— Then you wish to show that a 
Circuit . idge may decide whether the Supreme 
Court has jurisdiction. 

Judge Brien— No, sir, I don't mean any such 
thing. I say that oneof the judges attempts to 
sit ill the court and try a case, ami ttiat (act is 
made known and a wi'it of habeas corpus is 
asked for to deliver a prisoner from the custody 
of that judge, that then the Circuit Court Judge 
would grant, it, and would have a right to grant 
it. 

Mr. Trimble— I deny that proposition. 

Judge Brien — 'I hen you deny what the law 
is, because if one of the judges undertakes to 
sit on tie bench alone he is a usurper and a 
trespar ser on tlie law, and the case may be de- 
cided by a Circuit Judge as well as by any other 
juilicial ollicer in the State of TVnressee. 

Mr. Trimble— I would submit to Judge Brien 
that an impeachment wotild be a proper reme- 
dy for this. 

Judge Brien — This is a mistake. Whenever 
you have a citizen's life involved upon a tiia', 
or his rights or privileges endangered, you 
don't wait for the slow process of the law to 
del ermine the ca- e, but you take him out of the 
hands of the usurper at "once. It is a que tiun 
involving the rights ot the citizen, pnd not a 
question between the legislative and judicial 
power. It IS a question between the citizen aiid 
the people of the State of Tenne see as to 
whether tiie writ shall be granted. In this tlie 
gentleman is lalxiring under a misapprehen- 
sion. It is not a conflict between the LeglsLx- 
tureand the Judiciary in this case, but it is a 
conflict between a citizen who allepes that Le 
is I'nlawJully detained in prison, ami the party 
detaining him. But why was the bill of rights 
maile? it was to protect the citizen against 
oppression from whatever source it might come. 
He is the party complaining that he is illegally 
detained in custody, and he stales the facts upon 
the face of his petition, which that constitution 
and that bill of rights say shall entitle him to 
the writ of habeas corpus, and that the .ludge 
who refuses it shall be guilty of a misdemeau- 



103 



or. If his petition asks for a writ on these 
gronnrts, then ilie Judge is bound to grant it; 
but thoi the gentleman as Jis the question, sup- 
pose Jnflge Frazier was sitting- in bis court and 
one of his clerlss, or one of the oJUcers of liis 
court, had been guilty of a contempt of the 
C'urt and that a petition should be made to 
Judge Lea for a writ of hiibi;as corpus. Now, 
if the petition stated the trutu. tliat. the officer 
of the ( ourt or the member of the bar was de- 
tained in prison benauie he hud commii ted a con- 
tempt. Judge Lea W'Uld spurn him in oni single 
moment, because for contempt he is m.'t enti- 
tled to the writ of haheas corpus, but with 'he 
exceptions contnined in ihe constitittion the 
writ Will lie against any tribitna' on the face 
of tlie earth wher^• a pai-ty is illegally di-tained. 
If the jietition states that'the judge was not in 
point of fact the judge of the court, th it he was 
a usurper, and that he had ordered the party 
into custody, then I say that the writ shoul I bf 
granted, because the netition states facts which 
show that the ju''ge should not have oidtrtd 
the party into custody. It is upon the fact 
stated in the petition that the writ is preilicatcd, 
and in regard to the conflict ;is to ju isciictinn. 
Therefore I say that Judge Frazier acted right. 
Now in the Suprtme Court, one judge cannot 
sit and determine upon the rights of parties. 
The reason of this is that the numb r of judges 
prescribed by law would not then lie present. 
The cm-titution provides that there shall be 
three judg s of the Supreme Court The < on- 
stitittion also provides that when two thirds of 
the Legislature are a-semhled that that shall 
constitue a quorum to do biisinfss. The num- 
ber constltuiing a quorum is fixed by law. If 
a peti'ion staie^ ihat the Legisla ture has assem- 
bled, but that theiv is no quorum present, and 
that they have ur> power to transact any busi- 
ness except to adjourn from day to day. tlien 
the facts are as manifest as th:vt two and two 
make four. That was whut this petit'ou stated. 
The petition did not attempt to inquire into the 
power that the Circuit Court or any other ccurt 
had t) interfere with the lieglslature. That 
was not the queifon. But the party Avho was 
held in custody 1 y the Legislature complained 
that he was so lield by illegal authority, and he 
thetefore pray d for the writ that he might be 
relieved frm" the custody ol the I>eg^^latule. 
So far as that petition Avas concerned, it did not 
matter whether the Legislature was illeg,.liy 
organized or rot. 

Now I feel it my duty to not'ce one other ar- 
gument that Mr. iriinble n akes, and that is 
this: He says that the Legislature had been 
organized, and had assemb ed belore, and that 
it was not necessary for the Legislature to or 
ganize now. But "l say that that Legislature 
aii.ioumed to meet moiiths subsequent to that 
time This was an extraordinary session called 
by the Governor, and the Legis'lature was re- 
quired to be organized just the same as tnough 
it h d neeer nn t. 

Mr. Maynanl — Do you hold thatthis is not the 
siine Legishiture th.it that w;iS '( 

Judge Brieti— The question was asked on this 
very hiiheas corpus case whether the Governor 
had a rght tocallthe Legislature. VVeinsisted 
then that the I eg;»l iture must ad'Otirn sinedie 
before the oovernor c 'uld call it together, and 
that the tjovernor hadno power to <all the Leg- 
islature together. We insisted ih.it the Gov- 
ernor had no more right to call the ' egislature 
ti en than he would i' ihe.- had adjoiir: ed on 
Frid.iy to meet on Monday. But, Mr. President. 
I wai^t to be understood, "once lor all, upon this 
question. When we sav that the Legi;lature 
h s fione an illegal thing, we mean no disre- 
spect to the Legislature. When tlity have 
p issed an net that is unconstitut oijal and when 
wo say that it is ui. constitutional, we mean 
no disrespect to the Legislature. \V e don't say 
on that ac ount that they are no Legislature. 
But then they are governed by the 



constitution nndby the laws of the land just as 
all other Legislatures are, r.nd when they do 
pass an act that we say is illegal and unconsti- 
tutional, it is ni t to be"undeist' od by that thHt 
we want to destioy the state Government. We 
desire no such thing. We M';int once for all to 
be understoo I on this point. If they haverom- 
miited errors, there is a way to correct them, 
a' d we mean no d sri spectto the Legislature. 
When we say tha' there was no quotum pres- 
ent, !.nd t at theref le the action ol' the legis- 
lature was illegal in ref-reiiee to Williams and 
Martin we don't nv an to say that we desiie to 
upium and upri ot the Legislamre of the Stats 
ot Tennessee, or to infringe upon or in any 
way interfere with the r'ghts of the Legisla- 
ture I have made these remnrks in answer to 
arguments that I thou-ht were made outside 
01 the caii-e and that did cot ti'uch the ques- 
tion here. I hold that \ou eannot ask a v.it- 
ness his opinion upon an abstract question of 
law. 

Mr. Ewing— Here is a question proposed to 
Judge Gaut, and they come ano ask him his 
opinion of abstract question-^ of law. and 
whether there are any particular exceptions to 
a given rule They ask him what is his opin- 
ion as a matter of law upon a given point, and 
whether t e case proposed is not one of the ex- 
ceptions to the grr.nt ng of the writ of habeas 
corjHis. Neither in the direct examination nor 
in the cross exam nation have you a right to 
ask the witni ss his Oi iuiou upon an austract 
question of law. 

The President— The question before the coiiit 
is, ''fchall the question be auswere d? 

The vote was then taken by ayes and noes, 
and it was decided that the question should 
not be answered, the vote beii.gayes 9, roes 
10. 

Question by Mr. Trimble — Vou referred this 
petition 10 Judge Frazier. you say? A. I got 
Julge Frazier to come to Mr. ' ;olvar's room. 

Q. That i- the dav you got the writ? a. Yes, 
sir, I got the writ issued. 

Q. Whoswore to ihr' pet'tion? A. Mr. Car- 
rigan, I think, sir. That is my recollect. on. 
The pai erwill show, however. 

Q. Who came for you? A. Well, I was asked 
that quesi ion before. I do not reoiember who 
asked me to go to Mr Colyar's oilice. 

Q Hc:w d}d you know anyihing about it? 
What wa^ told "you when you "were ajtplied tr? 
A. When I got to Mr. Colyar's room I i earned 
what was i. oing on. I had not learneil bedoie. 
I learned that they were going t > apply for a 
wr^t pf habe 'S corpus for William-. 

Q Was Mr. (.oiyar frequently at the Legisla- 
ture? A. I do not know whether he was there 
frequently or not. 

Q Was he i ot unfriendly t^ the Unim por- 
tion of the Legislature? A I could state to 
you the posit on he occupied in politics. 

Q. I ask Tou ii you do not kn<.w in i oint 
of fait tliat he was? A. I ihink tliat he 
w- s opposed to the frar.clvse law and the ' on 
stitutional amendmrnt. I think th-t 1 heard 
him saj' so, though I never hia-d him mike 
any speech, butl think I 1 earti him say so m 
conver.sation some\v here. 

Q Was there anybody e se there besides you 
andMr, Coiviir? A. Yes, sir. 

Q. W^^ho was there? A. I havebeen studyii^. 
The e was some man there, writing, in Mr. Col- 
yar's office. 

Q. You said that Mr. Carrigan was there? A. 
Yes, sii, Mr. Carrigan was there, or else he 
cimein. 1 think he swore to the petition for 
the writ of habeas corpu- b< fo'e Judge Fra- 
zier. Ihere may have been i.tners there, imt I 
cannot remember who they were. Mr. Carri- 
g;i.n I think, ^m ore to the peiitiou, and that was 
b V. oru to in Blr. Colyiir's office. 



104 



Q You knew that the Legislature was con- 
veied by the Governor? A. > cs, sii\ 
■ Q. ^uVl that it was in session"? A. Ye-, sir. 

Q. And that tiiere were forty-five or liity 
nieaibers present? A. I unrlerstood that there 
were sjme forty-odd members present, perhaps 
forty-nine. 

Q. What number do you think constituted a 
quorum? A. I understood that fi I ty-six made a 
quorum. 

Q. You thoueht you had a right to determine 
whether there WHS a quorum? A. I understood 
that tiiere was not that number here but how 
the fact was I do not know, because I had not 
been up to the Legislature. 

Q. Hhs not the Legislature a right to make 
rules for its own proceedings and to regulate 
tho<e proceedings? A. I think so. 

Q. You spoke of that meeting- at your office? 
A. Yt'S. sir; dov/n on U' dar street 

Q. Who d'd yoa see there that evening? A. 
Speaker Heisked was there; Judge Brieu was 
tnere, and Judge Frazier came in tlieie some 
time while we were there; and I suppose that 
Dr. Hughes was there, because he was occitpy- 
ing- the oiUce wich me, 

Q How long had ihiylieeu there? A.. Well,! 
do not know. 'JL'hay were there a while, and 
then went out. 

Q. Was this question discussed in your room 
that evening ? A. Not that I remember, be- 
cause it had all past. Jt was after the adoption 
of the Constitutional Amendment. 

Q. That )S accoiding to your memory of it? 
A. Yes, sir; it was alter the writ of habeas cor- 
pus was discuss' d. That is all I kuow of that. 
Mr. Mullov said it was just nfter Speaiier Heis- 
kell had dec ared that there was a quorum. I 
am sure it was after the disposition uf the writ 
of habeas corpus case, and after the delendants 
were all disch;u"ged : I am su^ e of that. 

Q. IJid S])eaker Ileiskeli have anything to do 
with the cotton case ? A. No, sir. 

Q. Well, Mr iMulloy said that Mr. Colyar 
came in? A. I rlid not understand Mr. Muiloy 
to suy that. Judge Shane said iliat Mr. Muiloy 
W'jS i!> there. 

Q. Was there any meeting at your ofUce at 
all, upon the subject of the habeas rorpus ? A. 
None whatever, except that evening 

Q. And you never niide it a topic of conver- 
sation in "your ofli e ? A. Tlie evening that 
WiUiaius was arrested I know that they were in 
there, and Juilge Frazier wrote out his j udgment 
there in my otlice, and Mr. Colyar wi.s in there 
that evening, and Judge Brien. 

Question ny Air. Kwing— The evening that 
Willi ims was released, do you mean ? A. The 
evening that Williams wa^ released. It waj 
late m the evening and the Sheriff wanted r.o see 
Judge Fi-aziei-, aiid he came the e and wrote 
out his deci.-<iuu m my office. 1 think it is very 
likely that Mr. Colyar was in there that eve- 
ning. 

Q. What was the state of your mi^id. Judge 
Gaut, to>\-ards tlie Legislature at that lime? 
Were you irieudly to the adoption of tire ( onsti 
tutional Amendment, or oppo.~ed to it? A. I 
was unfriendly tj lIic adoption of the amend- 
ment. 

Q. Very decidedly ? A. T do not know that I 
was very decidedly opposed to it ; but that was 
my opinion about it. 

ii. Doyoutliiuk it is proper for members of 
the Legislature lo oe encouraged to absent 
themselves .rom the Hou-e, and to be encour- 
aged to stay away and (fefeat any particular 
measure before ihe Legislature? A. No, sii, I 
do not think that that was proper, aud I con- 
demned it all the time. 

Q. vVas it proper to take any steps to bring 
about that result? A. No, sir, I dont think it 
was. I was ojjposed to that. 

Q Well, j'^oii reail that section of the Code to 
Judge Frazier? A. Yes sir. 

Q Did you read th;it? A.. I read that pro- 



vision in the constitution, and I read what is 
laid down in the Cole in regard to this m tter. 

Q. It is only a wrongful and a willful refusal 
to s?raut the writ that subjects the Judge to the 
penalty? A. Yes, sir. 

ii. Well, would not the wrongful granting of 
the writ of habeas corpus be a misdemeanor 
too? 

Mr. Ewing— That is a question of law. I ob- 
ject to that. 

Mr. Trim t^le— They have got their own lawyer 
here, and they have had the benefit of his opin- 
ion on their own side, and then they object to 
the asking of a legal question. 

Mr. Kwing— 1 deny that we have had any 
op nion from him at all. 

JMr. Trimble — a mong the first fnings he said 
was that he statsd to Judge Frazier that this 
was a constitutional writ. But the moment I 
wish to test your witness, whose le^al o'litiions 
you have had the Ijeneflt of, then you interpose 
an objeL-tion. 

The question was then put to the court, and it 
was decided by a vote of 11 ayes to 8 noes that 
the question should be answered. 

A. I think the willful and wrongful grar ting of 
the writ of hibeiS corpus, if corruptly, wr ng- 
fully aud willfully done, is a misdemeanor, 
though the statute does not ma- e It one. But 
if he tsad wiopgl'uUy granted it, believing that 
it w:<s right to grant it, that would be no crime 
or misdemeanor, but if he did it from c irrupt 
motives, I ttiink that it would be a misdemean- 
or at common law, although the Code does not 
make it to 

Q. Would the wrongful and willful granting 
of the. writ be a misdemeanor? A. No, sir, 
the wronglul and willful granting of the writ 
would not be a inisdemeanor if the Jttdge 
thought it was right. A man may do a thing 
and do it on purpose and it may be wrong, but 
if he believes it is right he is not guilty. 

Q A man cm willfully do that which is 
Wrong? A. I don't say that. I say that if a 
man does what turn* out to be wrong and an 
error in judgment, that that is no crime, but if 
he had a corrupt and improper motive, that 
would be a mi-deme -nor. 

Q. When you approached Judge Frazier, 
what did he say to you? A. He cuid, you are 
going to get me into trouble. 

Q. vVh.it did that mean? A. It meant that he 
did not want to grant the writ. 

Q What did his saying that you wouUl get 
him imo trouble mean? A. I don't know as to 
tliat. I have stated t • you the 'acts. I am wil- 
ling to give the court my interpretation of it, if 
they wish it. 

Q. I ask you what you understood him to 
mean when he said that you would get him 
into tiouiiU? A I will state to the court what 
he said, smd then if the court wishes my opin- 
ion, 1 will give it. 

Q. I don't ask ynn for your opinion. What 
was your understanding of his meaning? A. 
I cannot distinguish betweeu my opinion and 
my understanding. I wi 1 give "it if the court 
desires. He said to me, you are going to got 
me in 10 trouble. 

Q. What sort of trouble? A. He did not say. 

Q. Wh it S'rt of trouble was he to get into? 
He wa-. just exercising a juditinl lunciion. A. 
If the court desirts I will give my opinion 
of it. 

Q. What did you reply to that? A. I replied 
that the writ of hab'iis corpus was a constitu- 
tional wiit, and one that could not be denied. 

Q. In any case? A. I just stated that to him, 
and t'len after \\ e got up to Mr. Colyar's room I 
reail the law to him. 

Q. Did he grant the writ reluctantly? A. I 
thought so. 

(). How long did it take him to grant it? A. 
He was a good long while. 



105 



Q. How many minutes? A. He was three- 
quarters of an hour, and may be an hour aft.r 
we got him up there. 

Q!" Were there any authorities vroiiucedV A. 
Kone, on'.y the ('ode and the cons-titution 

Judge Gaut— I wish to malceonc explanation. 
When I W.1S nslied the quv&tion if I did not 
think it wrong tv.r the members to stay away 
autl endeavor to prevent a quornvr. I said thiit 
I did. I was asked also if 1 was not opposed to 
the constitutional amendment I was opposed, 
bit while that was ^o, I was equa ly opposed to 
any member resigning his seat or going home 
I thouRlit they oueht to go there and vote 
against it, and record their votes an i make their 
Tecordright.andthatit wasall improper for men 
to rtsitn and >tay away to prevent a quorum, 
I so talked and said in this town. 

TESTIMONY OF JUDGE BRIEN. 

Judge J, S. Brien was next sworn as a witness 
for the defense. 

Question by Mr. Ewing— What is your name? 
A. John S. Brien. 

Q. Kcsideiife? A. Davidson couuJy. 

Q Were you present on the occason spoken 
ot by Mr. Mulloy? if so, state ■»\hat occurred and 
what was the occabion o' your being ihere ? A. 
I was )5resentat .(udce Gaut's oilJce at the time 
mentio-cd tj.v Mr Mulloy. My most distinct 
recollection is that I went to Judge Gaut's 
ottice for the purpose of consulting with him 
about the cotton case of which he spolse. 
My recollection now is that after I had been in 
*he ofiice some time, and after I had got nearly 
through with the business, that Judge Frazitr 
came into the roo.n. Some time alter he came 
in, Mr. i^eiskell. Speaker of the House, came 
in, and we entered into a general conveigation. 

Q. Judge Brien, let me ask you just there, this 
question; I believe Judge Gaut stated that Mr. 
Heiskell was th'eie at that time. How is tht,t ? 
A. I di'u't know. I have no knowledge of it ex- 
cept what I derived fiom Judge Gaut. But 
while 1 was in there Mr. MuUo / came to me. 
Mr. MuUoy and myself were engaged in a heavy 
suit. Mr. "Mulloy said we could compromise the 
case, and I told him 1 wou'd be out directly and 
see him about the case. Mr. MuUoy went out 
Judge Gi.ut, Judge Frazier, Mr. Heiskell ynd 
myself w re in the <'flice at the time. Mv re- 
collection is that Dr. Hughes was in theolUce at 
the time. But I have no recollection nf Howell 
Webb being in there at all If he was there I 
have now no recollection of it. 

Q Wh it time was tuat, Judge Brien? A. 
Do you mean what time of day? 

Q. Was It after or before the habe.is corpus 
C'tse was disposed of? a. It was several days 
after tlie habeas corpus case was disposed of. 
I coiiie to that conclusion the more readily be- 
cause f never had a word of consultatioa with 
Judge Frazier, nor was I in his presence du- 
ring the time that that h ibeas corpus case w;'S 
tried, except as an attorney at the bar, until 
after it was stll over. At the Criminal Court 
room, Capt;iin Heydt was before Judge Fra- 
zier, and he was discharged. I never spoke to 
Judge Frazie"- on the subject of thenabeas cor- 
pus case in my life, except as an attorney. Ac- 
cording to the best of my recollection, it occurs 
tome >;0w that this was several days after the 
trial of the habeas corpus case, and'indeed, after 
it was all over. 1 tried to loi get tlie case, as I 
aways try to forget the minute details oi every 
trial in which I have been engager:. 

Q. It wasn't, at ali events, during the time of 
the habeas corpus case that Mr. Mulloy came in 
there, was it? A. Xc, sir: it was afer ti^etri.d 
was all over. AccordiKg to my best recollec- 
tion it was several days afterward. 

Q. You were not with Judge Frazier during 
the trial? A. No, sir; I never spoke to him on 
the subject except as an attorney at the bar. I 



never had a private conversation with him in 
my lit> on the sidiject 

Q. '! hen you don't know anything in regard 
to his opiiiions as to the action of the members 
of the Legislature? a. I do not, sir. Judge 
Frazier, although I had seen and known bim 
here, and. if Imay be allowed to say so, always 
regra-ded him as a Radical, still I never had a 
word of conversation with him that 1 remem- 
ber, in my life, on the subject of po itics, and he 
neve' was in my otlice that I recodect of, nor 
was I ever in liis office. I d' n't remember that 
I ever met him in a law office in the city of 
Nashville, except on the occasion, to which 
reference has been made, at Judge Gaut's of- 
fice. 

Cross- Examination— Question by Mr. May- 
nard— What time in the day was it when you 
were in there ? A. It was in the afteyuoon. 

Q. What time in the aftoi-noon ? A. Perhaps 
towards the middle of the afternoon. 1 am not 
sure as to the hour. 

Q. What month was it in ? A. In the month 
of Jnlv; thac is my recollection. 

Q. Very warm season of the year? A. Yes, 
sir. 

Q. Well, how did it happen that you got into 
the back r 'om ot the office, and that t'le door 
was shut ? A. I think it is a mistake ab .ut the 
door b ing shut. It it a glass door I believe. I 
think tlie door was open. 

Q. What writing were you doing? A. Mr. 
Muiloy is mistiiken about that. 

Q. Was Mr. Howell ^Vebb writing? A. I did 
not see him there at all, and do not remember 
that he was there 

Q. You say th it he had gone there to talk, and 
was talkmg with Judge Gaut about the cotton 
case? A, Yes, sir. 

Q. Well, what was the conversation? A. We 
talked about the division or the cotton There 
were three claimants for the cotton . My client 
claimed a portion of it, and his client claimed a 
portiion, and we were endeavoring to arrange 
matters so as t > avoid a collision. 

Q. That was in the Federal Court? A. Yes, 
sir; suit was brought again-t Mr. Fuller. An 
action was taken fjr replevin. Mr. Fuller 
filed a petition to remove the case to the Fed- 
eial Court. 

Q. Was the Federal Court then in session? A. 
No, sir. 

• Q. How long was this before? A. It v.-as the 
Spring term, I think. 

Q. Wed, you think Mr. Mulloy is mistaken 
about your being shut un there iii a back room? 
A. I think he is mistaken bat I do not think 
he >■ ould state an> tiling wrong intentionally. 
He was mistaken in regard to the door being 

Siiut. 

Q. How was it about the other time when yoix 
Went there and t"-oU M- . Colyar along? A. I nev- 
er went there with Blr. Colyar in my life. Mr. 
Colyar was not there '.hat evening, according 
to liiy recollection. 

Q Then is Mr. Shane's account of that true? 
A. Mr. Shane stated that Mr. Colyar Wi;s there, 
but he was not there, and I think he is mista- 
ken if he places him there at the time referred 
to. 

Q. Well, you heard Mr. Shane's testimony. 
Mr. Mulloy fixes the time. A. Well, I think 
Mr. Shane is mistdken in saying that Mr. Col- 
yar was there when I was there. However, I 
may be mistaken myself. 

Q. AVere you a member of the Legislature at 
that time ? " A. No, sir 

Q. State what you know of a purpose and 
plan to defeat the action of the Legislature by 
preventing the assembling of a quorum. A. I 
don't know anything of my own knowledge 
about that at all. 

Q. Do you know whether any caucus met for 
that purpose? A. I do not. I never knew in 



106 



my life of any meeting being held on that sub- 
ject. 

Q. Do you know whether any conlerence was 
held with members oi' the Legislature on that 
subject? A. I do not, sir. 

Mr. Ewing— This is all new matter, may it 
please the court, and not anything which was 
brought out in our examination. 

The witness proceeded with his testimony as 
follows : 

I had some conversation with Judge Gaiit on 
the subject, and I had some conversat'ou with 
others perhaps; 1 liad some conversation with 
the editor of the Gazette upon the subject of 
what I understood was beiug doue in the Leg- 
islatu;-e. I was not in the Legislature, that I 
remember my:e f. 

Q Do you know whether a purpose was form- 
ed by members of the Legislature or by other 
parties not connected with the Legislature, to 
prevent the assemblage of a quorum ! A. I do 
not. I would not be likely to know it. 

Q. AVhat were your feelings toward the 
Staie Cover meut ? A. Of the most fiiendly 
kind. 1 defended the State Government on all 
occasions. 

Q. Did you make any speech in which you 
said thac the State Government would have to 
be swept away and overturned ? No, sir. 

Q. Did you make any spuech of that kind? 
A No sir. 

Q. Who emp'oyed j'ou as counsel in this case? 
A. The friends of Mr. Williams and Mr. Mar- 
tin. I don't know who they wpre. I was told 
they vv ei e the trieii'is of Mr. Willians and Mr. 
Mai tin I bad nothing to do wi'h the case 
ongmnUy ; nothing to d > with the getting out of 
the writ of habeas corpus, but afti r this was 
done, ami when the case was to be tried, I was 
spoken to by some of the friends of Mr Wil- 
liams. 

Q. Who paid you your fee? A. I have not 
been )>aid any fee, and do not expe, t any. 

Q. Then you volunteered? A. Upon my part 
it was voluntary. 

Q. Well, was it so upon Mr. Colyar's part? 
A. I don't know anything about his arrange- 
ments. 

Q. Do you know his feelings toward the State 
Government? A. I d» not. sir. 

Q. Toward the United States Government? 
A. So. sir, I i,ever heard Mr. Colyar spe^k 
about it. 

Q. Was INIr. Colyar in the rebel Congress at 
Eichmond? A. I understood he was. 

Q. Did ne have anything t'> do with getting 
up the petition ibr the writ of habeas corpus"^? 
A. I think I was not in the city at the time the 
petition was made. Perhaps I was at Frank- 
lin. 

Q. Were you sent for? A. I came back from 
Franklin of my own accord. You ask me if I 
ever made any declaration in my argument. I 
stated to the court that less than a quorum 
could do no bu-^int-ss. 

Q. I want 3-ou tj state whether vOu had not 
spoken in a speech against the State Govern- 
ment, and whether you did not know of a pur- 
jiose ro overturn the existing ,>tate Govern 
ment? A. 1 neV'M- ma'le in my life anysp ech 
advocating hostility to the Staie Government of 
Tennesste. I have spoken very severely of 
some olljcers of the Government, and I have 
spoKeu of their mal-adniinistration, but as tVir 
as the State Government was concerned, I was 
in favor of its organization and have defended 
that Govei nnieni on all occasions. 

Q. Did not you make a speech at Shelb/ville? 
A. I'es, sir. 

Q. In which you expressed hostility to the 
State Government and announced that the Gov- 
ernmmt should be overthrown? A. No, sir, I 
said that IJiovvnlow's Government as he pro 
po-ed 10 carry it on was inimical to the best in- 
terests of the country, and that it would be 



overturned, and that I did not think the time 
would be long before the people would take the 
reins of government into their own hands and 
sweep away Brownlow's Government. My 
speech wa* reported diiferently I know. 

Q. Did you knov that therp was a purpose to 
prevent the ratification of the Constitutiouul 
Amendment by the Oegishiture and Iheieby to 
prevent tliH State Government trom being re- 
cognized bv Congress, and to tollow th;!t up by 
setting aside tue State Government and appoint- 
ing a Provisional (jovtrnrae t lor the State of 
Tennessee? A. I have no knowledge of any 
such thing. 

Q. Did you ever hear anything of the kind 
confessed? A. No, sir, I never heard anything 
of the sort. I have heard a great many men 
say that they preferred to be under a militiry 
government to being under lirownlow's Gov- 
ernment. I heard a great many say that both 
before and after that time. I was opposed to 
the consitutional amendment m' self, 

Q And you say that you thouaht and so ex- 
pressed yourself that those men who were re- 
signing and who voluntarily absented them- 
selves trom their seats in order to prevent a 
cptorum were guilty of a wrong and willful 
violation of their duty? A. I made no such ex- 
pression. 

Q. What was your opinion? A. My opinion 
was that the members of the General Assembly 
who were elected and who tissembled here 
should vote against the constitutional amend- 
ment if they were opposed to it. I was opposed 
to all revolutionary movements, and I spoke the 
same sentiments seveial years ago, that thia 
coniliict would produce more h;>rm than 
good 

Q. Do you know whether there were a laro-e 
number of armed men h^re in the city who 
were proposing to go up there and "clean out 
the Legislature," as they expressed it? A. I 
have not, heard of it. 

Q. You heard no talk ol it on the streets? A. 
No, sir. 

Q Nothing like that? A. No, sir, and if I had 
lieard any thing o'' that sort, I should have de- 
nounced it on the spot, and il I had believed 
that my action was required, I shou d have 
taken steps to prevent it 

Q. How long Avere these transactions that 
occurred here prior to the riot at New Orleans? 
A. I do not remember when it was. I never 
took particular notice of dates. 

Q. Who g;ive the Sheriff his directions and 
insiirnctioiis with reference to execaticg his 
piecept on the Serge^nt-at-Arijis to the mem- 
bers of the l.fgishituie? A 1 suppose that the 
writ itself cnnmanded him what lO do. I will 
state 'his, th it the Sheritl' asked me about it 
and I told him to obey the writ. 

O. Did you instruct him to break into the 
Capitol? Q. JNo, sir, I diU notknow that there 
was any necess.ty for it. I told him it was his 
duty o arrest the parties 

Q. You say you were present when Captain 
He> dt was at the Criminal Court? A. Yes, 
sir. 

Q. What time? A. Early in the morning, 
tliat is, a'.ter the ordinary meeting of the coiarc. 
I live si.\ miles in the country, an-i after I came 
in I went ovtr to the court" room. I think it 
was in the morning. 

ii. Were there many persons pi'csont? A. 
Veiy few'. 

Q Who was in that otlice? A. If there was 
anybody there but Judge Giut and Judge 
Frazier and the Siierifi", I have no knowhdge 
of it. Perhaps there were two She ifTs there. 
Q.Wh .t is the reason i hat Caj)!--. Ueydt was not 
allowed to have tie counsel that he wanted? 
A. Who? Capt. Heydt? I never knew thatheditl 
not have the counsel that he wanted. 

Q You heard h's testimony on that subject? 
A. Yes sir, but I had not heard of it before. 
This ij the first time I heard of it. 



107 



Q. Was his case disposed of before the or- 
dinary time for the assembling of the House? 
A. I don't really remember what laecisc time 
it was .'iispos''d of. 

Q. You spoke of having a conference with 
the editor of the Nashville Gazette? A. Yes, 
sir. 

Q. StatPAvhether he wa in favor of over- 
turniig the State Government? A. No, not in 
favor of overturiiini!- the State Government, 
but I thiuk he was in favor of having the mem- 
bers oi the Legislature, who were opposeit to 
the constitutional amendment, stay away from 
the Capitol. That Mas what caused me to 
speak to him about it. J told him I thought he 
was wrong in that, and that he ought not to 
encourage any such thing. 

Q. Did you hear any of the members at- 
tempting t ■) dissuade them from ihe course they 
were piirsuiug? A. No, sir. 

Q. AVell, did you attempt to induce your two 
clients to go back and take their seats and de- 
mean themselves as orderly members of the 
LiCgislatiire? A. No, sii-, if you will allow me 
to state it I will say that I ilon't know my 
Client-. I did not visit the Legislature. 

Q Then you used no effort to induce any of 
the rei,u>ant members of the Legislature to 
keep ill their places and not to pursue the 
course you saw they were pursuing? A. Not 
that I remember. 

Q Do you know whether Judge Gaut did? 
A I don't know sir. 

Q. Well, did Mr.Colyar do it? A. I don't 
know ^ir. 

Q. Did Judge Frazier do it? A. I don't 
know sir. 

Q. Did you ever hear him give any ail\ii:e? 
A. I never heard him give any advice except 
on the trial itself. 

Jie-direct-.Eioaniinaiion.— Question by Mr. Ew- 
ing — i lai st-.te ihac on the occasion that Mr. 
Mulloy was in the room became there to con- 
sult you al out tlie Bankhead case? A. Yes, 
sir, that is what I said. 

Q. He stat-^d himself that that was what he 
came for? A. Yes, sir. that is what 1 under- 
stood him 10 st^ate. 

Question by Senator McKinney — You spoke 
of the Bi'ownlow Government. VVhatwss that? 
A. My opinion was that Brownlow had no 
more regard for law than if there had not been 
any law on the statute book, that he acted only 
in accordance with his own opinions, and that 
he wi'S not governed by statutes at all. 

Q. What do you mean by Browulow's Gov- 
ernment? A. 1 mean Brownlow's o>.in per- 
sonal coutrrl of the government. I did not 
mean that the State of Tennessee belontred to 
hnn, or that he had any control (^ver it, and tliat 
it was no a Imiuistration if it was tyranical, 
overbeiring and witliout regard to law. Tiiat 
i« what I mean by the Brownlow Government. 
Wlieii I speak of the Brownlow Government I 
am not speaking of the GavernmenC of Tennes- 
see. 

Q. You said his government would be done 
away wiih? How woulitthat ue? A By the peo- 
ple meeiiog together and voting him uown. 

Q. By coiiV' utions? a. Mv purpose wa^ to 
cdl a conveniion of the people of the State of 
Tennessee to amend the constiuitiou so as to let 
every man in the St cte of Tennessee twenty- 
oue years old, white or black, vote at tlie elec- 
tions, and in that event, and if that whs carried, 
tliat Brownlow would stand very little show in 
the Scate of Tennessee. These were my views 
thC'i, and those are my views now. 

Q i ould that be done constitutionally, or 
revo utionary? A. It isn' t revolut oiiary. The 
bill of righis" grmtcd to the peop e the right to 
meet at any time tliey chose and a.ter'their 
form Of gcverameut, being geverued alone by a 
rei'ublican form of government. Thatsamebili 
of lights gives the right to the people to assem- 
ble whenever they shall think proper to change 



their Constitution, and to meet the exigencies of 
the times. That was my opinion then and now. 
I want to state distinctly that I never harbored 
in my mind 'one moment anything like a revolu- 
tion. I was always opposed" to it in everv case of 
the word. My idea is that in revolutionizing 
governments at all it i- to be done at the ballot 
box, and ])v the people thenjselves. 

Question by Mr. Maynard— It has been de- 
cide I by the Supreme Court, has it not, that 
that is the State Government wliich is recog- 
rdzeJ as such 'jy the Tederal authorities ? A. 
Yes, sir; they have said that the State Govern- 
ment recognized by the Federal Government, 
and not in coufl ct with the Government of the 
United Stat -s, is always to be recognized by the 
United States. 

Q. vVas that so in the Rhode Island case? A. 
I tliiuk not. sir. 

Q. And with a view of carrying out this 
plan which has been brought out hy a member 
of the court, wasn't it very important that 
the Federal Government should be prevented, 
it possible, fiom recognizing the Brownlow 
government, as you call it? A. No, sir, not in 
my estimation. The recognition of the Govern- 
ment of the State of Tennessee by the Govern- 
ment of the United States was very far from 
mi itatinif against any view that I took. It 
rather strengthened my view. But I think 
th:.t the State had a right, under the b:ll of 
rights, to modify its constitution. If it had 
been a miiicaiy government there might have 
been some question about it. 

()■ Wlodid you tiropose should initiate this 
movement? A. I proposed to do it myjeli". I 
studied it a gr^ at ileal 

Q. Do you supiose that a citizen has a right 
to >tir up movements of that sort? A. Siirup? 
I don't use that terih. 

Q. Web inaugui-ate? A. I don't use that 
term, but I hold it fobe the right of every citi- 
zen in the St ite of Tennessee to entertain and 
express his own views in legard to the govern- 
ment, and to induce every man by leg.timate 
and honorable means to agree with him in his 
plan of government if he can. 

Q Was this opinion of yours entertained by 
others ihan yourself? A. I think it was enter- 
tained by several others. 

Q. Your client. Judge Frazier? A. I never 
spoke to him on the subject. 

Q. By your associate counsel? A. I believe 
I spoke t J Gaut about it, but Gaut did not ex- 
actly agree with me as to the propriety of it. 

Q. How many of you were concerned in this 
scheme at that time? A. No one spoke to me, 
hut I believe i did not speak to any one except 
in a public address I made. 

Q. I think you said you had consulted with 
others about the movement? A. I did not say 
ttiat. 

Question by the President— If the witness 
will permit me, I would like to ask him one 
que.-.ti >n. 

Q. You speak of the Brownlow Government 
and the Gov. rnment of Tennessee? A. Yes, 
sir. 

Q. I would 111" e to know what you mean by 
that. Do you mi an that there are now two 
governments? A No, sir. The President wdl 
very readily apprehend that I was speaking in 
derision of it, and it was att u hin j: to my words 
more conseque.ice t>ian they ought to liave. 
The Government of the Stiite of Tennessee I 
understand to be tlie Government iiu ser the 
tonstitution an'i laws of the State of Teniies- 
see, governed by ollicers who undertake to en- 
force the Constitution and the law"s of the .-^tate 
of Tennessee. Andllioid further that what- 
ever laws are passed by the Legislature of the 
State of Tennessee are not binding upon the 
citizens of the State until those laws are re- 
pealed a. id declared null and void by the su- 
preme authorities of the State of Tennessee. 
Therefore, when I speak of the Government of 



108 



the State of Tennessee. I mean thnt governnient 
wliieh is coiitroled by the Constitution and the 
laws. But when I speak of the goveruineut of 
au individual, I speak of h'm as a usurper, who 
is not governed and controlled by the laws of 
the State but bj' opinions and prejudices ot his 
own. I speak of it in derision 

Q. Then I understand the witness to mean that 
he considers that although Browniow was 
elected as the Legislature of Tenuesste was, 
that Browniow is a usnruer? A. No, sir; I say 
Browniow was legally elected, but, then, 
Bro\vnl->w cho e not to enforce the laws of the 
State of Tennessee. As I understand it, then, 
and as they were written in the books, and to 
toat extent he was a usurper. I don't say that 
he usurps the posit on he holds or was illegal y 
elected Governor. 

Question by Judge Gaut— You stat'd what 
your opinions and yo'r policy were about call- 
ing a convention. Please state to the court 
whether or uot you did not meniion it to me 
one day, and tnen please state my reply. A. I 
do not remember the exact words of the reyly 
you made to me. 

Q State whether or not I was not opposed 1 1 il? 
A. Yes, 'Sir, I understood you a , bemg opposed 
to my p. an. I stated that before. 

TESTIMONY 3F JUDGE JOHN M. LEA. 

Judge John M. Lea was next sworn as a wit- 
ness for the defense. 

Question by Mr Eist— State your name and 
resilience. A John M. Lea. 

Q. State whet'ier you were Circuit .Judge of 
the county ot Davidson in .July. A. Well, sir, I 
was appointed in May, '66. 

Q. State whether or riot yon know the char- 
acter of the defendant. Judge Fruzi, r. A. Yts, 
sir I have known Judge Frazier for ai'out 
twenty-seven years. I fust knew him when he. 
was Clerk and Master os the Chancery Court at 
Pikeviile. I rode that ciicuit when I started 
out. He has a! ways maintained the character 
of a truthful, honest, just man. I think he is re- 
gardea by the community as a man wiio is con- 
scientious in the discharge of every public and 
private duty. 

tj. State whether you had any occasion to 
know .Judge Frazier's opinion in regard to the 
State Governmont? A. I never conversed with 
him in my life on that pirticular quesiion, 
that is, since he has been living in Nashville. 
La>t April, when the County Court met, there 
was no quorum. I ascertained that; fact. I 
was then Judge of the Circuit Court. The 
business of the county was about to stop, and 
I went to see Mr. Stubbliifleid, who was the 
Attornej' General, and Judge crazier, to con- 
sult with tliem and see whether applicati.>n 
should not be made toGovtraor Browniow. He 
was holding hi< court, audi got him to sus- 
pend business for a few minutes. He uotitied 
the ijlers that he would not be in for an hour 
or two. We went intj some office in town. Mr. 
StubbletJed's 1 think, and I drew up a paper to 
Governor Browniow, stating that the jiisticeof 
Davidson county had no quorum, and that no 
jurors could be appointed, and the whole paper 
went upon the presumption that we were fa- 
vorable to the state Government. I kmw we 
stated in the paper that by giving commissions 
to the magistrates so as to form a quorum, it 
would tend to strengthen the State Govern- 
ment and make tiie people have faith and confi- 
dence in it. I wrote the pajier. but I don't re- 
collect exactly what it contained. I suppose it 
is on tile in the Secretary of State's office. Mr. 
Stubblefield came up to see the Governor. The 
Governor was not licre. We read the paper to 
Secretary Fletcher, and he told us to come up 
again, i remember that he either telegraphed 
to the Governor or that at all events the com- 
missions were sent down to the court, and that 
the business of the court proceeded, l know 



that paper contains friendly sentiments to- 
wards this State Government. I don't recol- 
lect exactly what it contains, but I am certain 
I am corr. ct about the purport of it. It was the 
flrst Monday in April. iStiO. 

Q Did the conversation you and Mr. Stub- 
bleii eld had with Judge Frazii r at that time 
comport with the character of the paper, and 
was it iriendly toward the Stata GovernmentV 
A. Certainly it was. 

Q. He wtis ready to acquiesce in anything? 
A. Yes, sir. 

Q. Were you in town dtiring the trial of the 
habeas corpus case? A. 1 was one day during 
the tiial. 

Q. Did you see Judge Frazier? A. I met 
Judge Fraz er on the streets and he ask-jd me 
where my office was. I told hi^n 1 had no office 
in town. He said that the matter was up be- 
fore him and that he was unacquainted with 
parliamentary law. I ttiin'' he hbd never been 
a member of the Legislature. He was kmd 
enough to say that he had coutii fence in me and 
would like t^ consult me irivately, that he 
would be thankful if I would look up the au- 
thorities and give him what light 1 could in the 
investigation of the case. He said he wanted 
to do what was right, that he would be very 
glaii if I woidd pro.iuce- the authority and con- 
sult with him on the subject confld'entially ot 
course. I am sure that in th conversation I 
e.niinadveited very stronaly on the i-.onduct of 
these recusant members and I am also sure that 
.Judge Frazier coiicuned with me and tha' we 
both regieted it very much. In a dttle whi.e 
he said to me 'If you have no office in town, 
can't you come to my house?" i told him I could 
come but that I would have to go to Memphis 
iutue uiornin,«c. He replied that the argument 
would not be through ai.d that lie did not want 
to give his miud any bias until after the wnoie 
argument was made. But I did not go out to 
hs house. I went to Memphis and never saw 
hull any more about it. 

Q. I wid ask you whether in that conversa- 
tion you reieried Judge Frazier to any books 
and authorities? A. Well I referred him tj 
Jefl'erson's Manuid, and told nim that I was not 
very famidar with parliamentary law. I re- 
ferred him to Mansheld's Grammar and Hat- 
zell's Calls. 1 told him I supposed the lawyers 
would jiroduce all these authorities, flese^uied 
to be very anxiotis on the subject and exhibited, 
as I thought, a painful anxietj' to do whai he 
thought was right.. 

Q. Well, you undertake to state that in that 
conversation j'ou ascertained the personal 
views of Judge Frazier on the su'ject. A. I 
think he concurred with methatitwi'S very 
impolitic and \evy revolutionary for men to 
absent themselves from the Legislature I 
know I animadverted on it in very strong terms, 
and 1 know th)t he concorred with me. 

Cross Examination. — Question by Air. May- 
nard — How long ago was it that you became 
acquainted with Judge Fiazier? a. la the 
spring of 1S40. 

Q. He was ii. lawyer then? A. Well, sir, he 
was Clerk and Master in the Chancery Court. 

Q. He was a lawyer several years before you 
were? A. 'ies, sir, several years before I 
was. 

Q What authority did you say you referred 
him to? A. I referred hi ui to Jefferson's Man- 
ual, Manstield's Political Grammar and Hat- 
zell's Cases. I told him I did n t know much 
about parliamentary law; that I supposed the 
lawyers would produce all the authorities. 

(I. That is all you know 1 A. Yes, sir, that is 
all I know. 

Q. Was there a good deal of excitement in 
the public mind? A. From the papers I sup- 
pose there was. I was in town very little, but 
iroin what Isaw in the newspapers and irom. 
what I heard in town there was a good deal o 
excitement. 



109 



Question by Senator Smith— Do I nmlerstand 
you to say that Judge Fruzier signed that pa- 
per. A. Yes, sir. 

(Juestion by Mr. Maynard— You spolso about 
a quorum of the County Court. You drew up 
a paper urging the commissioning: of the jus- 
tices? A. Yes. sir, and stated that if the com- 
missions were granted, it would tend to give 
more confldence in the Sta e Government. 

The court then adjourned. 



WEDNESDAY, MAY, 22d, 1867. 
The court met at the usual hour, all the mem- 
bers being pre-ect and the President in the 
chair. The records were read and approved. 

TESTIMONY OF GEO J. 8TUBBLEFIELD. 

Attorney-General Geo J. Stubblefleldwas the 
next witness called on tne part of the defense 
and sworn. 

Question by Mr. East— Mr. Stubblefleld, will 
you state to the court what oflioial relations you 
occui^y to the State Governmenr, and how long 
you have occupied it? a. I am Attorney-Gen- 
eral of the liistrict which is conipo-ed of the 
counties of Williamson, Sumner and Davidson. 
I was aMDointe'l in February, 1863, by the Gov- 
ernor of the State, Andrew J hnson. 

(J. flave you held that ollice continuously 
ever si'ice? A. T have sir. 

Q. Who v^ras the Judge of thi»t court at the 
time you held that jjosition, and who has sub- 
sequently been theJutge? A. At the time I 
was appointed Judge M. M. Brien was appoint- 
ed — Ibelieve he was, a few days before I wa> — 
by Governor Johnson as Jud^e of the Criminal 
Court, aiul he remained in fffice sometime. I 
reckon through the year 18G3, though I cannot 
be posit ve as to the time. 

Q. Then Jud.tre Frazier was appointed by 
Governor Johnson? Has he held tliat ollice 
ever since? A. Yes, sir; he has held the ofli e 
ever since. 

Q. Have you been present at all the courts 
held by Judge Frazier in this city? A. I have, 
sir, every court, I believe. There was one court 
during which I was sick, and I was not there 
all the time. If I r»-member, it was in July, 
18a4. Myhertlth was bad, bail was there apor- 
tion of the time. 

Q. Mr. Stuiibletle'd, will you state to th!^ court 
your a^socihtions otherwise than as an ollicer in 
tliac (.ours with Judge Frazier? A. Well, we 
have associated together very cordially and 
friendly, and particularly the whole time. 
Several reai^ons probably contributed to that. 
We were both old Whigs: we were both runoff 
from our home, and both arrived in this country 
and adopted this as our home and were app >int- 
ed to otUce, audnece^jariiy these things led toa 
very intimate relationship b.tween us, as he 
was Judge and I was jittotney-General, ard 
in adilition to that. Judge Fr.izier was a maa 
not hiving a great deal of means ; neither had I. 
I was living in the city an 1 his family was in 
Rutherford county. His salary Avas not suffi- 
cient to support h.s family and to go to a hotel 
at that time. The result was Inad a bed in 
my room. Mr. Spurlock was there; he was 
asked to go there, and sleep, but he complained 
of imposing upon me and said he did not think 
it was right. Judge Frazier then went, I sup- 
pose to Judge Gauts office. I know he left my 
ollice, saying he had imposed on me long enougn ; 
b jt still we assoi iated tugether, probably more 
than anybody else in the cuy. For ihe reason I 
have befo e mentioned, our relations have al- 
ways been kind and friendly toward each other. 

Q. Did he tixiusaet agiea't deal of his official 
business in your office while he was there? A. 
\ es, sir, nearly a' together. 



Q Did he stay in there? A. He read my 
books, wheu a question arose that he had dif- 
ficulty about ic. Frequently I would go to oth- 
er otUces and get him a uook that he wished 
particularly to examine on some point. He 
made it rather his heailquarters. The truth is, 
I have been trying to remember where and in 
what office I have seen him, but I 
do not remember to have met with him in 
anybody's office except my office and vour of- 
fice. With that e.Yception, I don't remember 
to have met him anywhere. 

Q In that connection you may state what 
were Judge Frazier's associations about the 
city of Nashville? A. Well, I don't think he had 
a j;eneial||association of an intimate character. 
I think I know him well; he is rather a timid, 
unassuming man: he is not very tree to speak 
O"- to enter in conversation with a crowd at all. 
He was more intimate in his associations with 
you and me. and when Major Hickerson 
was here, I think he associated With hiin. He 
ilid not associate muoii when he c;;mehere; 
he attended to his business exclusively. Ha 
would come in the moiuing to the cou: t house, 
and remain there frequtu ly till dark. It was 
very seldom that we adjourned for dinner 
even. The jail was full and there was a good 
deal of labor to attend to. We would hoid for 
months at a time, and his associations were 
limited with everybody except in his official 
capacity. What time he had to spend usually 
he spent in ray office, and sometimes he went to 
your office, being acquainted with Mr. Spur- 
lock. 

Q Had you any reason to know Judge Fra- 
zier's feelings toward the Government of the 
United States, or toward the State Govern- 
ment? A. Well, sir, 1 think 1 had. 

Q Well sta e what they w re? A.I think 
hi» dispostion toward the Governmejit of the 
United St ites has been that of the most friend- 
ly character. Since I have known him; which is 
lor twenty-five or thirty years, I never knew 
anv tiling to the contrary- As tT the State Gov- 
ernment, J am satisfied that Judge Frazier's 
relations toward it have always been of the 
kindest chai acter, and I never heard a word to 
the eontrarj during our whole associations 

Q. iJo you think you taifed with Judge Fra- 
zier as much as any other man in the city of 
Nashi^ille, and h ive us much right to know his 
opinions as any other man in the citv? A. 
Well, sir, I might be mi-taken about it," but I 
don't think i coal I be mistaken about it. I 
was with him too much to be mistaken. He 
lived for a considerable time in Uutherford 
county, and wh' n he came here he -^aiue to my 
office and remaineil there and got his meals 
somewhere else. In was impossioie for me to 
board him or I should have boarded him, as I 
had my relatives in the house. I am satisfied 
that our rela'aons were of the warmest charac- 
ter, and I can give you some reasons lor that. 
I rememuer well when Governor Johnson pre- 
sented lim with the comuiisjion. He declined 
to take it, saying that he had not lived ii°re 
previously; that the Federal lines were just 
out-ide of h'L're; that he lived out in Rutherford 
county; thit it would cert.iinly lead to his de- 
struction ; that he would be torn up if he ac- 
cptel any posit on of tnat sort; and then he 
modestly declined, saying he did not think that 
he was quadfied to hold the office, or some- 
thing to tbatefl'ect. Governor Johns'-n said, 1 
am well acquainted with you and know your 
qua' ilic'-itions from reputation. Now I know 
you cannot do much as Jud^e at this time, but 
this is a mere entering wedge. If I ca,a get 
one court in operation successiully, that is an 
entering wedge towards orgjinizing the judi- 
ciary as we advance our lines. I want you to 
assist me in this organization. For tnat >'ea- 
son Judge Frazier accepted the office, for I was 
in communication with him all the time and 
know that this is so. Well, then, I know that 



110 



upon another occasion— probably the country 
don't generally know it— the magistrates had 
been elected here under the franchise law. I 
believe Governor Urownlow had refused to 
commission the magistrates, siying probably 
that they had been electe '. in violation of the 
franchise law. Matters went on in that way 
until the A])ril court met, then Judfre frazier, 
Judge Lea and myself got together. I don't 
know whether this was broughiabont by Junge 
Frazier or by Judge Lea. I tbink probably 
both of them spoke about it before I did ; any- 
how, we all got together. Our feelings were 
with the State Government; we desired to see 
it move on. We conclud'd to use our influ- 
ence to get the magistrsite's commissions. That 
instrument was drawn up. I reckon that it is in 
the Secretary's ollice now. It was signed by 
Judge Frazier, Judge Lea and myself We 
all concurred that it was a matter of necessity, 
and that if the magistrates were not commis- 
sioned, that woulu throw difflcultii s in the way 
of the orgnuization of the State Government. 
He had always been considered as a Wnion mau 
and as going with the ttadical party, and voting 
with them in all elections after ho was enttled 
to his vot9. It was agreei that Judge Lea and 
myself should go and see Judge Frazier. Then 
we went up to the Capitol ana faund that Gov. 
Brownlow was not in. We spoke to Secretary 
Hetciier. Mr. Fletcher said that Gov Brown- 
low had refii ed to commission these men, and 
spoke rather short and hastily at tlie time, but 
not offensivelv, to us; but he said that the de- 
cree was absolute. I remember what we said 
t-> him ; it was, in substance, that it would.fur- 
ther the interests of the State Government, aud 
would aid the people m relation to their position 
towards the Stale Government, and enaule him 
to run it. We said, also, 'you cannot run the 
State Government without money. No tax has 
been laid, and unless you get the magistrate's 
commi-sion, there is nobotly to lay a tax; and 
that necessarily drives everything into anarchy.' 
That was the talk we had. 

Q. That was in ApriJ, 1866 ? A. That was in 
April, 18tJ6, according to my recollection. It 
was at a quarterly term, and the magistrates 
were there and making a heap of luts 

Q. Stite whether or not in ttie administration 
ot the law iuhis charges to juries and trrand ju- 
ries, it has ever become Judge Frazier's duty 
to charge them in regard to olfenses of a politi- 
cal nature; and whe'ther all classes occupying 
various relations to the ijovernment have not 
been tried by himV A. That has been hi- cour e 
ot conduct always. We have tried Federal sol- 
diers, we have tried rebel boldiers, we have tried 
coloi-ed soldiers, we have triea colored ciiizens 
of almost every variety, I reckon, that you can 
mention, from full bloods to quadrooi'S. We 
have tried all classes of people of this country 
for one ofl'ense or another. If I am capable of 
judging, his deportment has alwaj'S been fair 
and correct. I'l regard to those questions, 
whcu.';ver purely political matters were brought 
in by lawyers, he said to the jurors that thtse 
political prejudices must have nothing to do 
whatever with the administration of justice, 
and he told them that they were here to adniin- 
iite • tlie law as it was. 1 suppose I have heard 
him say that lifty times. 

Q. Were questions of that character argued 
belOre the Judge? A. Yes, sir, in a great many 
ways. 'Jthey have frequently been discussed 
belorehim, and I have always thought that he 
was a good lawyer. He is not as quick to de- 
cide,as some men, but I think that if he has 
time to decide his opinions are as crediable as 
those of any man I ever practiced before in the 
State. On every occasion he always took pains 
to consult the authorities, and if he did not de- 
cide questions impartially I am unable to 
judge. 

Q. Was a question ever made before him in 
regard to the cousiitutionailty O'. the acts of 



the Legislature, either directly or indirectly? 
A. Yes, sir, I was trying to remember the case. 
Someone argued it there once in the court, and 
he decided unhesitatingly that he considered 
this a proper Legislature and its acts valid, and 
that he should administer them as far as he 
was capable. I remember it, but I don't re- 
member the particular case. I remember the 
case was argued, and the Civil Rights bill read. 
There was nothing very vioient or very 
vicious. 

Q. Well, what have formerly been his charges 
on questions of that character? A. Well, sir, 
his charges have uniformly been in accordance 
with the laws as passe 1 by' the Legislature. I 
have never known him to take the respou'-ibil- 
ityoi sayincr that any act of the Legislature 
was unconstitutional or voiri. He was not a 
man to talk much about politics. 

Q. JJoes that remark apply to acts of Con- 
gress also as well as to acts of the Legislatui-e? 
A. Yes, sir, when several ac's of Congre-s 
were brought up there he just went along and 
decided them. 1 havi- known him to adjourn 
court to examine authorities, and to say that he 
would not render a decision till morning or 
something of that sort. 

Q. Mr. totiibilefleld, were you present in Julv 
18f)t). or were you in the city at all during the 
trial of the habeas corpus ca^e? A. Vts, sir, I 
was in the city and was present during a pa't 
of the trial. I know I was not there all the 
time. 

Q. Did you have any conversation with Judge 
Frazier during the p"rogre-s of that trial? A. 
Well, very little. I will tell you what I know 
about that. My opiniou is that Judge Frazier 
and myself had been iu the Criminal Clerks ot- 
fice looking over some bills of costs and certi- 
fying to th. m. i h»d been there, I think, and I 
had invited him to my ollice, and we were sit- 
ting there talking. Judge Gaut came up and 
notified Judge Frazier that he had a petition 
for a writ ol habeas corpus. lie seemed nut to 
be apprized of anything of the sort ami I know 
I was not although I knew a day or two before 
that there was a dilhculiy. I was going to ;-ay 
that i went up to the Legislature and went 
into Gov. Browulow's room. 1 asked the Gov- 
ernor how he was getting along with the I/Cg- 
islatnre and he told me that he had inadeai.pli- 
catioii to General Thomas for forces, and tnat 
Captain Heydt had b°en sent out and had ar- 
resteii oijC of the members, anil that he would 
have ihe others there in the course of a day or 
60. I don't think that any body else Mas in 
there. 1 don't remember whether 1 told Judge 
Frazier th it or not. I know th t when Judge 
Gaut came in the ollice I had liO idea up to that 
time that such a thing as a petition for a writ 
of habeas corpus won It! be presented to Judge 
Fr^iZier. I liau been notified that the parties 
had been arrested by the Governor. 

Mr. Trimole — Were they arrested by order of 
the House? A. He didn't tell me that. I think 
he said, "We have sent Capt. Heydt after 
them," and that he would have so-and-so here, 
andihuthehad applied to Gen. Thomas lor 
troops 

Question by Mr. East— What occurred then? 
A. When Judge Gaut came in there and noti- 
fied him, he seemed to consider for a moment, 
and nude some remarks to Judge Gaut. As it 
was a matter of business between a lawyer and 
a J udge, I had nothing to do with it, and got up 
to retire. There was an expression ot Judge 
Frazier that led me to believe that he was dis- 
inclined to have anything to do with it. I got 
up, and he said, "L>on't go, for you are my con- 
stitutional adviser," in a jestirg way. I said, 
"Well. Judge, that is a matter I don't know 
anything about," and I walked out, and Judge 
Gaut asked him to go over to his ollice or Col- 
yar's office, and I think that Judge Frazier 
asked me to go along with them, i said, "Mo." 
We two went down stairs together, and I went 



Ill 



on, probably, to youi' office. They went across 
the street, but 1 can't say, certainly, whether 
they went into any office or not. That is the 
last I know ot it. I think Jnclge Fra/,ier came 
to my office the same evening, but I won't be 
certain as to the time. That, however, is ray 
recoil' ction ot it, and he made this remark to 
me: "What tlo you think ot this case?" •'Well," 
said I, "Judge, it is a qutstion that I never ex- 
amiued in my life, anu thereiore can give you 
no informati. n about it." He and I were in 
jieriect couUdence. He would say anything in 
the world to me, and i would to him. "l had full 
contidence in him, and would say thi' gs to 
him that I would not say ou the streets at. 
all. Then he said to me th: t he would like 
to decide this case so as to k<>eo those fellows 
in custody, but that he must examine the law 
and decide according to the law if he could. 
}' e seemed to expri s> great anxii ty as to wheth- 
er he could decide the law or not. Whi^na 
vexed question came up he always doubted his 
mind, although I think his judgment is as cor- 
rect as that of any raa^i I know. 1 would as 
soon trust to his judgment as to anybody's. 
Bur he has always gone into questions (f that 
sort exhibiting great anxiety. It take^ him 
some time to come to a concliision. He said, 
"J would like to decide the case that way, but 
I must decide it the way the law is it 1 can 
learn what the law is," and we parted. I think 
it was that eveiiiog afterwards ; I am satisfied 
about that. Kexi day I wei.t to the court 
house. I do not think he said much to me about 
whether he would grant the writ or not. 1 
just infened it tliat way. I went up to the 
court house next day, and Judge Harrison and 
you spoke upon the question, and perhap^ 
Judge Gaut. It does not seem to me that Mr. Col- 
j'ar spoke, but he might have said something. 
Mr. Trimble made;! speech,.audasked the court 
to adjourn, saying that he was wearied ind 
vv'as just out of the Senate, and wanted time 
uitii next morning to examine the authorities. 
The court adjourned, although Judge Brien 
insisted that lie wanted to go oil" with his family, 
and th.it ho wauted the case finished that niglit. 
Perhaps he mentioned that the-e ni'ii were 
imprisoned. The main object w<is, though, that 
he wante^l togooff wi h his family. Mr. Trimble 
insisted the other way,an!l JudgeFrazier i's I re- 
member, Siood there and said nothing until they 
Were done cavilling between each other, and 
adjourned the court until next mornmg, at li) 
o'clock. He lived in the ( ountry six miles, and 
I think it was until that time. When he 
returned next day, I went up there, and heard 
Mr. Trimble malie a speecii there. Perh.ips I 
heard a little of Judge Brien's speech, but I 
think but a few words. I was out of the court 
house, and I heard iier-,oi.s talking about Mr. 
Colyar's remarks. AVhen 1 went tliere in the 
moining my purpose was this. I was in lavor 
myself of holding the members in custody. Bui 
I was not saying anything, and I went up to 
hear whether Mr. Trimble would bring up au- 
thority sustaining that position. That is why I 
went; for I had no curiostity about it, except to 
learn vv'hat the authoritiLS were. It was a new 
question to me entirely, and one that I never 
had examined, although I had iieen a lawyer 
for several years. I went up there to hear 
what authority might be read, and then I ttiink 
I went off. That is u^y opinion about it. I was 
not present when It was decided, and did not 
know it at all until I heard it upon the streets. 

Q. I will ask you whether some one or ail of 
the counsel for the petitioners, read to the court 
a section in the Code to t lie effect that the Judge 
should not hear the ciise at all until the prison- 
cs were brought into court? A. Yes, sir; 
there Avas such an argument as that made. 

Q. What was the ruling of the Judge upon 
that point ? A. Well, he declined to take harsh 
action. He said there was no necessity for that, 
that he wanted to have the question examined, 



and whatever was right he had no doubt would 
be done. He said that he would not send lor 
them, that they could go on and argue the case. 
He refused to do it? 

Q. Well, it was at his suggest on that ths was 
done? A. les, sir; he refused to do it, but he did 
not do it in a dictatorial hortof way. He did it 
in a pleasant way. He said that the question 
could be argued They insist, d that a prisoner 
ought alwaj s to be present when his case was 
tried, but hf spoke pleasantly, but declniLd to 
do it. I never saw the prisoner. He whs not 
brought in there ti my knowledge. I never 
did see him to this day that I know of 

Q. Mr. Stubblefleldjdid you have any conver- 
sation with Judge Frnzitr after the argument, 
or did you see him ? Yes, sir. 

Q. Pertaining to tlie trial? A. Well he did 
not talk to me much about the dec sion one 
way or another. I think he said to me mere- 
ly thatheM-ould have be. n glad to di'cide it 
the other \^ay, but that he considered the liw 
was contra) y to what his imlinations were. 
AVhen tl.ey first commenced boning he and I 
had a conversaiion upon it. 

Q Well, what were tiis views at thattime on 
that su'ject? A. I remember well wnat he 
said. When Andrew Johnson and the "immor- 
tal thirteen" left the Legislature "I condeinnefl 
it. I thought It was not right, and I am still of 
tliat opinion. Itliinka legislator should vote 
against what he thinks to'"be wrong— then he 
has discharged his duty, but he ought not to go 
away from the Legislatare. He ought to re- 
ma n there. This conduct is revolutionary in 
its character, to break up Legislatures in that 
v. ay." Then he referred to the "immortal thir- 
teen." He said: "I condemned tiieir conduct 
then and have never changed my opinion s mce." 
That was before the habeas cori)us case, and 
was tlie only conversation we had about it. 
But Judge Frazier does not talk politics. It is 
an accident if you hear him mention politics to 
any lium.sn being. I have not heard him do it 
frequen.ly. It is very seldom, and then the 
question is likely to be i aised by so'i.e one else. 
My oriinion is that I r,.isid the question when 
he said wliat he did. I am satislled I did. That 
occasioned the subsequent r. marks in that con- 
nection in regard to that particular case We 
were appoinied by Governor Johnson and 
everybody knows that there was a large major- 
ity of this community iliat were not Union 
men, and we felt that we j ot only had to act 
straight, but to be Mbove suspicion, and we 
tried to shape our conduct in that direction. I 
knew that if I or Judge Frazier ever said anv- 
thiiig to which txceptions could be taken, 'it 
would be heralded through the papers, and 
that, therefore, we ought to be cautious. I of- 
ten let out something wrong, but .Judge 
Fi'azier is not a man of tliat sort. He don't say 
anything. 

<,,», Mr. Stubblefleld. how long do you sav you 
had known Judge Fraz'er? a. My recollec- 
tion is that I became acquainted with him in 
1810. 

Ci. In the various relations of life what is his 
character? A. Well, sir, I think his character 
is that of an upright, correct, conscientious 
man, in his private and public relations. 1 have 
known him for twenty-seven years, and I have 
known his reputation, and have been intimate 
with liim as a lawyer ami otherwise for that 
length of time. Qe lived close to me when we 
were both at our original homes. Only the 
mountain was between us, and we were to- 
gether very frequently. This is the first impu- 
tation I ever heard against him in my lite, ei- 
ther in his private or his puiJic relations 

Q. Judge Frazier, since he has been a Judge, 
so far as > ou know, has been in the habit of dis- 
cussing politics with no one, or attenang ))olit- 
ical niectinfis ? A. No, sir, I do not think he is. I 
think he never ran for the Legislature over 
there iu his life. He ran for the convention aa a 



112 



Union man just before tlie war, in 1S60 or 1S61, 
but I never heard of liis di^ciissing politics on tlie 
streets with anybody, and I don't thinli I have 
heard him discussing policies at all since the war. 
He is rather a timid, prudent man, and does not 
say much upon those subjects. I am acquainted 
with him, aud I tisinli that is the fact I have 
never known him to discuss those things. 

Q. AVhen you spoi;eot Junge Frazif^r's char- 
acter, Mr. titubblcfleld, vou used the words 
timid man; do you mean by that that his liim- 
ness was abnied in any degree? A. I don't 
mean that. I mean that he is a man that says 
little. , ^ 

Q. A modest man? A. Yes, sir. that is a bet- 
ter word— that he is a modest man and don't 
intrmle his conversation upon pftoide. 

Q. He has his opinions'? A. I think when he 
has his opinions he is as Urm as any one, bur, 
he is a man who doe-i not express his opinions 
pu'diclv. You have to pull them out of him 
unless in his olhci >1 caparity. 1 have seen h m 
on the bench when excited questions were be- 
ing considered, and 1 have always seen him to 
be very firm ami determined in settling the 
legal quest ons between parties, whether they 
Wore on one side or the other of politics. I 
don't ihink he ever looked to the righc or left. 
I don't mean by wnat 1 say that he is easily 
overawed. I mean that h ' is a pruaent man 
and not apt to speak much. 

Q. Do you kiiuw how .Judge Frazier hap- 
Beiied to come to Middle Tennessee? A. I 
bnjw it from reuutation I don t know it as a 
matter of course-, for I bi;lieve I came away 
flr-it. 

Q. Do you know any hing about an early or- 
ganization of the government, cr do you know 
while he was jet a riiizen in East Tennessee. 
To refresh your memory, do you know of his 
having a commission from the Military Gover- 
nor when an effort was being made to organ- 
ize tne county, to hold elections j or magistral es 
and suporvifois? A. Commission given by 
Governor Johnson? 

Q. 1' es. A. I remember that. 

Q. Do you remember that you suggested his 
name to Governor Jonnson as a suitable man 
in th.>.t locality? A. Yes, sir, I remember it. 

Q. At the very firsr. elections heid in the 
State? A. Ycr, sir, it was the first organiza- 
tion. 

Q. In the spring of 1864, 1 believe? A. Some- 
where along tiiei-e 1 believe It was soon after 
I was appointed Attorney General. I had been 
an old citizen, born there and tmew everybody 
nearly, and hence, when he wanted anything 
of that sort he always consulted with nie about 
it. 1 reni"niber now that that commission was 
sent to h'm but I hal forgotten it. 

Q. Do you knov/ that the elections were held 
under it, and that the county was organized? 
A. I understood tliey were, and that the (oun- 
ly Court was probably organized under it. 

Q. That was the earliest and first organiza- 
tion during the war? A. Yes, sir, the fir.^t ef- 
fort mide during i he war. The war was still 
in existence, so much so that even aiter Jud^ e 
Frazier was appoimca Judge he had to run in 
here and stay lor weeks ai, a time wh.u 
Wheeler v\ouldcome round. 

Q. f rom Kutherlord? A. Yes, sir. I could 
tell very well when Wheeler was crossing the 
mountain; then Frazier would come in. 

6Vo6s-^«tfmzfta^io?».— Question by Mr. May- 
nard— I underst >o i you to i-ay Mr. Stnbblefield 
that you have been very long and intimately 
acquainted with Judge Frazier? A. Ye?, sir. 

tj. Your relations were those of peisoual 
friends nip? A. Yes. sir. 

Q. From political sympathy? A. Yes, sir. 

Q. I understood you to say thit you had 
known hiin as a lawyer since 1840 ? A. I did 
not have a license at that time; I was reading 
law, but I think it was 1840 that I wentto Fike- 
viUe and made his acquaintance. 



Q. Was he a lawyer ? A. I think he was 
Ch-rk and Master in the Chancery Court. 

ti Then, both as a man and a lawjer he is 
your senior? A. Yes, sir; he is my senior. I 
thiuk he is about fifty-five years old. 

Q. You are about fifty ? A. I am forty-eight 
liast, and will be lorty-niue in December. 

Q. You speak of having applied to have S'^ine 
justices commissioned lor this county ? A Yes, 
sir. 

Q. Why did the Governor decline to commis- 
sion I hem ? A. I did not see the Governor, but 
I understood that he declined to commission 
them because he tboua-ht that the law had not 
been properlv executed. 

Q. Did he think that they had not been prop- 
erly elected? A. Yes. sir; 1 think that he 
thought tbat persons had voted who had not 
properly obtained their certiflcites. That is my 
ui.derst mding of the case. 

Q. Aud you represented to the Secretary of 
State tbat the State revenue dei>ended upon tbeir 
being commissipned? A. No, sir; this is regu- 
lated by the acts of the Assembly, and the tax 
is levied by the County Court. 
Q. If there is one ? A. Ye=, sir. 
Q. Do you know any other authority ? A. No, 
sir, I do not know any other authority to levy a 
tax of this kind. 

ti. Suppose the County Court refuses to elect 
a Tax «. ollector, i-' there any remedy by law in 
that case ? A. I don't know, except tliere 
would be a remedy by mandamus. If there was 
no County Court I do not know bow you would 
elect a Tax Collector. 

Q. Well these men were commissioned? A. 
Yes, sir, they were commissioned. 

t^ And his signing that paper is the evidence 
that you produce of his feelings toward the 
State Government? A. No, sir; t produce it as 
a portion of thu.t, and not as his expression. 

Q. Were those men who were elected J ustices 
of the Feace all friendly to the State Govern- 
ment? A. Well, sir, I cannot tell you. Some of 
them, I know, were originally Union men, or 
professed to be so, and I never found that there 
was anytlimg to the contrary. 

Q Well, some of them were not Union men? 
A. Possibly, that might be so. I do not know 
how it was ; but still, I would say, in answer to 
that question, Mr. Maynard, that my opinion is 
different from that of some other persons, in re- 
lation to tills mutter. I don't think that there 
was a great many men in this countiy who 
wanted to break down the Stale Government. I 
don't think that they wanted to have a condition 
of anarchy in the State. 

Q. i understood you to say that Avhenyoti and 
Jutlge Frazier came here, that the prevailing 
sentiment was that which was in favor of the 
rebel?? A. I think so, sir; tbat is my impress 
sion When I came here I think there were 
about lorcy thousand troops in the State. 

Q. Aud you knew that your action was likely 
to be criticised by the ijress. A. Yes, sir. 

Q. Well now. from which side of the two po- 
litical parties did you anticipate tnat criticism? 
Did you anticii)ate it from the Union side, or 
from the rebels? a. I anticipated it from both 
sides. I knew that in the periormance of my 
duty a? un Attorney-General I would have to 
prosecute soldiers from the Federal arm j and 
souiiers from thereutl army, and I knew that 
if I u a not faithful in the disch.irge of my duty 
that it would be said I had not acted fairly in 
the case. 

Q. W ell, you spoke of the newspapers. What 
were the names of those papers that were cen- 
suring tie oflicers of the State Government? A. 
I think that the Banner was censuring them, 
thai the Dispiitch was censuring tliem, and 
probably the Gazette. I believe the Pkess and 
Times was Umon at the start, and was under- 
stood to be Governor Johnson's organ, and I 
suppose it w<.s. But in those times it was nec- 
essary for a man to be very cautious. 



113 



Q. Well, has not the rebel press, ami by that 
I mean the press that was rebel before the war 
and flur njj the war, been decideilly bitter and 
acrimonious? A. Well, I think, it was very 
bitter. 

Q. Do you not know the fact to be so, that 
there were a great manj- men who were in- 
clin d to be Union men wlio were deterred from 
avowing their real sentiments? A. I do not 
know thiit fact to be so, but it. may be the case, 
but I will tell you what I think, and what I 
have for some time thought, that those papers, 
so far as the action of the Legislature is con- 
cerned, did their IVienis more haini than good; 
that is my opinion about it. 

Q. You were right in that? A. Well, I 
thought I was right about it. 

Q. "W' 11, has not the rebe' spirit been exceed- 
ingly bitter, boih in public and in private, as 
much sons it was permitted to hv all the time 
since you have bten here? A. Well, ;\tr. May 
nard, I would stiy this about it, that I believe 
that the rebel papers have not trily represent- 
ed the true sentiments of this community. I 
am satisfied that a majority ot the rank and file 
of this community I'o not endorse many of the 
sentiments that are there advocated. That is 
my opinion about it. 

Q. Have you heard any of the rank and file, 
as yon dinominate ihi-m, any of the citizens, 
making any pulilic speeches' or uttiring any 
protest against the outpourings ofthtse news- 
papers? A. Well, I heard them speak of it in 
private conversatiim. and 1 talked witli those 
men. I lived in Warren county; that was a 
strong rebel couiitv, if ^ou remember, i'he 
rank and tile went into the rebt Uion in sp'te of 
their real disposition. But I always h;td ii kind 
of sympathy and feeling for those men. But 
sometimes 1 was compelled to close my nnutn. 
Since the war was over I talked with these men, 
and I do not think that they were crim- 
inal. 

Q. Well, I understand you to say that the 
rank and file were cowed into that movement 
in the bci'in«ing. and are cowed still by these 
leading dominating influences? A. Well, they 
have been forced to this. 

Q. Well, have you heard any protests, either 
publicly or privately, on the part of any promi- 
nent man, or any influential rebel, against the 
course that the- e nit-n or these rebel papers 
have pursued, and the character of whicli ' ou 
have just described? A. I do not th nk that I 
remenber of any public'- speeche-i denouncing 
them. I tiiought that all nic n \» ere iiesiious ot 
peace and quiet, but I cannot say any moiv in 
regard to this than what I have seen in th se 
papers. 

Q. You speak of Judge Frazier as a lawyer? 
A. Yes, sir. 

Q. if 1 understood your testimony correctly, 
you said that he was a very sound lavpyer? 
A. Yes, sir, that is ray opinion. 

Q. Was he deliberate iu his conclusions? A. 
Yes, sir 

Q. You speak of his deciding upon the acts 
of the present General Assembly, and I want to 
ask j^ou whether ttiis ca=e was right? A. Yes, 
sir. 

Q. Were those acts culled in question before 
him? A Yes, sir, it took place in this way, 
under the old acts of the Legislature tlure was 
a clau e providing in regard to the sale of 
sp'rituons liqnois to free negroes, and a free 
negro was not ullowed to have a tippling house 
until he complied with the statutes in regard to 
this ' ase. There was a statute in regard to ttie 
sale of liquors by a white man, which permits 
him to stll to free negroes under certain cir- 
cumstances. Under the civil rights bill it was 
contended that there was a repeal of the acts of 
the General Assembly, and on the other siile 
that the General Assembly had nothing to do 
with this case at all. 

Q. iJo you refer to the civil rights bill of 

8 



Congress or to our own Legislu ture? A. I speak ol 
the civil rights bill of Congress which was dis- 
cussed all over the country, and which has 
finally been decided. 

Q. Do you knnv whether the validity of the 
present btate Government ^vas ever called iu 
question before that Juthge? A. Well, I can- 
not tell you who it -was. I tried to think awhile 
ago 

Q. You don't remember who it was? A. I 
don't remember who it was. But I don't think 
it was of much importance any way. You 
know that men sometimes get up and tire at 
the wind, it wiis no set sjieech or anything 
of that sorr, but I know that Judge Krazier 
interfered and said it was not woitb while to 
discuss about it. 

Q. You were here, I unde' stand you to say, 
in July, 186a? A. I was. sir. 

Q. Was there a good deal of excitement here 
at that tiuie? A. Well, sir, 1 think there was 
considerahle ex( iteineni:. 

Q. On the subject of the meeting of the Leg- 
islature and the pa^suge of the LmenOmeui's? 
A. Y(S, sir I think there was that kind of a 
general excit ment which anything of that 
sort will always piodiic-. 

Q. Do you know whether the entire rebel 
elemint her'' of which you have spoken, and 
its organs, the press, were not using their In- 
fluence to prevent a qu"rum and to defeat f^e 
adoption of the constitutional ameudment? A. 
Well, ihut is my undersiand.ng that the pa- 
pers were ad\ocating thiit fort of courte. I 
don't know whether the entire community 
were or not. I tii ' not say th' entire com- 
munity, I said the entire rebel commit uity. 
Q. We 1, the entire rebel community. A.I can- 
not answer for them, ard the rea-on of it is this. 
1 had been acting all the wh le w-iih the Radi- 
cal party, and they did not talk to me much. 
Sometimes a man would drop an expression in 
my presence that wou'd miike me teel that he 
did not desire that the Legislatuie should beas- 
seinbhd ti> pass the amendment; but as a gen- 
eral thing thev dill not t Ik much about it to me. 

C^ Doyou knoiv wnether some of these men 
>A ho had formerly m.ide claims of being Union 
men were co-operating and acting with tlitmV 
A. I di) not know that 

Q. Were these refractory and recusant mem- 
bers of the Ltgislature men who haa heretofore 
claimed to be Uni.in men? A. Well, sir, that 
was my understanding, so far as I knew them. 
One of the m was a member (rom my own coun- 
ty. This mun 1 had kn wn ad the time, and I 
had known him to be a Union man 

Q. Well, did you claim to be a Union man ? 
A. Yes. sir;l have alwa3S been rec. gnized as a 
Union man. 

Q. Di'i Judge Brien claim to be a Union man? 
A Yes, sir. 

Q. How was it with Mr. Colyar ? A. I don't 
think Mr. (.'olyar was a U' ion man, because he 
was elected to the rebel Congress at the out- 
break of the rebellion, and iu lact, he told me 
that he was there. 

Q How was it A\1th Major Hickersou ? A. 
Major liickerson was a Union man, and I 
never knew anything t> the cimtiary while I 
SI ayed in the county, lie was battling for the 
Union auil for the maintenance of the laws. 

Q How was it with Williams and Martin? 
A. 1 don't know. I never saw them in my life. 
My understanding was that they had all been 
Union men, but then it was just my general 
understanding. Bu thispoint lonly sawstatecl 
in the, papers, and 1 hail no general acquaint- 
ance with them at all. 

Q. 1 will ask you whether the Legislature 
was not held up from day to day to abuse and 
denunciation, and ridicule and contempt, and 
whi ther every unfavorable sentiment oi the 
community was not hurled agaiiist that body ? 
A. Well, sir, I would say that the newspapers 
of Nashville were very violent in their expres- 



114 



sions in regard to the action of the Legislature. 
I rememljur very varticularly the vi ■ienee of 
the Daily Gazette. But in justice to myself I 
will state tliut I never read the Gazettv or the 
Banu. r very luuch since these uapers liave bet-n 
started. ()cca.sionally 1 looked into ttieni. 
But 1 remejjiber tha on the occasion of tlie ;is- 
semblin:' ol tlie 1-egislaiuie the Gazette came 
out '» ith a very violent article, which 1 thought 
AVIS not proper t < Ije pulil-shed. 

i}. 1 will a^li \ ou ti> state, iurthermore,whether 
the individual mem c-rs of the Legislature were 
no' poi ted at in di risi'in, an m tie the -uliject 
of ridicule, as far as you know, by the rebel ele- 
ment i)f this community, and denounced by the 
rebel element? A. I di n't know that, Mr. May- 
nard 1 ju-t know that the papers were a 1 very 
Tiolent toward the Leui latuie. snd would use 
any term of abuse that'the> could. Th a is my 
opinion a> to the st .te of the case. But I can- 
not hiiite that it was a fact. 

Q. When I say the community, 1 mean thf 
rebel element in the comnuunty." a I think 1 
under-tand you. I ti ink 1 know enough in re- 
gard to tills point. I have hai the priuii of my 
life destroyed by it, and I think that the papeis, 
some of th m, are a great cli;advaiituge to the 
comuiuniry. 

Q. I do not suppose .you were in their coun- 
sel, liutsim. ly as being personally present in 
this company and pas lug aboi t and picisini; 
up nl'ormation, Task ymt this que tion, wheth- 
er the rebel element was opposed to the adop- 
tion Ol the amenument? A. Well, .'•ir, I think 
that the rebel port on of the ommunity was 
opposed to th J adoption of the constituiional 
amendment 

y. 1 'o you know wl ether theie was a precon- 
ceited attempt and a Conspiracy to break up 
our I'resent btate Guvernmei t? A. Well, sir. 
if there was anything of that sort I do not 
know anything about it. 

Q Was nottiingof that sort ever said? A. I 
don't know. I never heard an iniimation of an 
intention fc' bie k up tlie Legislatu'e. 

Q. i'liere is a law on the sttute looks, is 
theri'^ not, against sedition? Have you ever 
enfcrced that law in your court? A. No, 
sir. 

Q. Has that law been given in charge by the 
Judge? A The Old 1 .w .\,isie enacted b " the 
first session of the Legi--lature. It was r - 
pealed and then re-eiuieted. I think the books 
will show. 

Q Were you pre'renr in court at the time 
Judge brazier left the court? A. Alter the 
habeas corpus trial? 

Q. After he was impeached? A. I think I 
was, sir. 

Q. Uid you hear the address he made on (hat 
OccasiOi.J A. 1 did. 

Q. flease state w hat he said of the ch iracter 
of th-: tribunal that \\ii,-. to act up -n his case? 
A. 1 teink his remarks were jiublished in the 
papers. I would n<>t like to try t> repeat them. 
But I will try to tell 30U al I know about it. 
A day or two after the articles oi impe chment 
had been pa=sed, he d.d ii(tt know whether that 
was an intimaticn t,. liun, or whether he -hoiild 
wait till after the Scn.iie pssed 1 pun them 
So doubtful was he as to whether he had any 
auttio" ity to goon and hvhl • ourt, tt^ai he talk- 
ed to ni- about ii, and 1 gave him my opi iion 
that I thouL'ht he w:.s not su»; ended nntii the 
articles were transmiited to th Senate, ami 
perhaps not uutd alVr the -en ate should noti- 
fy him; but at the s:iinc time, it was iiouhtful 
whether after the artcles nad been transiiiit'-<d 
to the senate, anu made known to the papers, 
wheiherthat was not a suspension Ui sai 
it was doiiitlul, ami he was i day or tAVo ling- 
ering a ong, and didii'' kn iw w hether to stop 
or not. lie would U'! take up any important 
cases, but just tried some Mnall ca-es I'inali^ 
he deieniiined that heweitld adj urn. When 
he ha ! deiernilned that, h set upon his b( ni h 



there, and said to the jtiry that he was going 
10 aiijourn court. He said that there was a 
great deal of business still bef re them, thattne 
jail was full, and that he regietted very much 
that the court had to stop, but said that his 
superiors. (1 think he maue some such expres- 
sion,) had St nt forth the flat that he should 
stop, that it was doubtful whether he had a 
right to go on; and that he h..d to be tried by 
the Legi lature, and whether they would con- 
vict him or not, he could not t' II, 

tj. Well, didn't he say more than that? A. 
Well, lie dd say more than that, but Jl cannot 
remember it. 

Q. I'ldn't he say that it was unfair, and that 
they had jirejudged his case? A. Well, I can- 
not say abeiit that. 1 rem mber of his saying 
that he had to be tried, an 1 he may have said 
Rometiiing in relation to tie court that was to try 
him, iiutif he said anything imphing any dis- 
respect, it has escaiiCd my recollection, sir. 

Q Any unkind remarks he made reiractory 
on th s court have escaped you? A. ^ es, sir, 
they have escaped me. 1 never heard him 
mat e any tinki d remarks about anyborly ; and 
1 think that if he had made an unkind remark, 
siiew ng that he was actuated by piejudiceor 
anything of that kii d, I should have noticed it. 

(J. 1 >o you remember of some one announcing 
or calling out in the court that t' e ' \- ere going 
to eh ct liiin Governor? A. 1 don't remember 
that that iiay. I think, perhaps. I htardsome 
o: the common citizens say iliat. 

Q. I mean on the occa>ion I was inquiring 
ab ut, when he was making theje valedictory 
remaik^ ou the bench? A. I don't remember 
that. 

tj. Do you know whether there was a suit in 
the Ciicuit Court in the names of Williams and 
Jlaitin against members o' the Legislature 
atiou that time. A. I learned that to be so. 
sic I don't know it of my own knowledge; but 
then I iinderst' od it to be so. 

Q. Uid Mr. Br. en bring suit? A. I heard it. 
It is all hearsay. I have but little business in 
the Circuit Court. The criminal Court has 
taken all my atteniioa, and I end nothing to do 
witti that lawsuit. It is as much as I can do to 
attend 10 my own cases. 

Q. Have you ever b' en a member ( f, the Leg- 
is atuie? A Never, in my ife. sir. 

Q. I understood you to sa\ th t Judge Fra- 
zier once ran tor the Leyislatuii ? A 1 th nkhe 
once ran for the Legislature, and that he was 
beatiir bvaman by ihe nai.jc of I'ope; that is 
my 1 ec llection. 

'Jie-cl iri ct-^ciminaiiion—Qiestion by Mr. East 
— 1 w sh to make Seme inqidri. s in regard to the 
new sp iper reyorts. You are well aiquaiiterl 
in this city with the moral, s •cial and imlitioal 
seniime.t of the people? A. Weil. I suppose I 
am, as well as any man w ho wculd coiul. here, 
as I did, a stranger, at that t me. 

Q 11 ve you been in contact with grand ju- 
ries and among witnesses? j\. Y s. sir. 

Q. I ask you to state what class of people the 
Gazette represent-.? A. Well, 1 do not know 
tliat It represents an> body except the editor. 
He is the responsible p!irt\ 1 suppose I have 
not tallied with him much ahontii. He has 
gone on, and made rough rvinaik-, sticn as Ido 
M.t apt'i'ove. Isutipsethe community know 
that I don t approbate it, ami 1 den't hear them 
ad ocate it. 

Q. I 'o \ou know anythirg in r. gaitl to Judge 
Fia ier's ftelings as to this matter? A. Weill 
tliii k I do. I believe hedoe^ not opjiose their 
C'iUise but he is a man that • oes not talk much 
; bout the-e things. But 1 will say there were 
some very violent articles iu the Press and 

TIJIES. 

Q. Can you name a body of men, ova class of 
nil n in ihecemmuiti' thatyoti iVel wellsarisOed 
t'e Gaz tte and its editors repicsent? Do you 
know a class ot that deseri()tion ? A. No, sir, I 
00 not. 1 cannot say that I know them as a 



115 



class. I do not know but a few persons that 
take the Gazette. I think it goes on its own 
hook pietiy much. 

i). You have been asked if yon 
heard any speeches made denunciatory of 
the cnduct f those members, and of the ex- 
pressions oC those newspapers. VVas there any 
speaking outride of the legislative body and be- 
fore the piiblic,ononesideof the case or the other 
in consequencL' of those expressions? A. 1 do 
not know that there was. There have l)een a 
fewuieeiings held hei'e lately of a political 
caste, but 1 think they have all been of one 
caste. 

Q. C:in you call to mind a single speech 
made to an audience by any responsible or 
leading man on political subjects save on one 
side ol the case in the last four or Ave years m 
this county? A. On one side. I heard parties 
that h;id been considered rebels m»ke a speech 
or two. 1 t ink Gov. Brown made a speech 
some time at;o, I. lit he is not a man of violence. 
I could not repeat his spi ech. 

Q. I mean speeches in which the members of 
the LcKi-^lature were censured publicly? A. 
AVell, 1 kiio'.v nothing auoiit that further than 
what; I nave seen in the piipers. I hfive see,a 
Judge Urien's speeches in the papers, and 
every one knows their contents as well as I 
do 

Q. I allude to the speech in the Gazette by 
Judge iJrien or the commen's on it? A. I know 
he dei-ouneed the?e things as unwoith}'. Judse 
Bri: n denounced the Gaz- tte in ver^ stiong 
ttrnis, an t that was the article I re'eired to in 
the Gazette I tiink the comments of the Ga- 
zette were very low. 

Q- AsJudire Brien has been asked about 
this on the otlier >ide, 1 will as-k you whether 
you ren.Ciiibrr tallying m ith Judge" Brien ahout 
the meml>ers bolting? A. I doii't lemember 
having a conversation. It seems to me that I 
had some convei'sation, but I doc'c remember 
it well eniiugta to relate it. I ;im satisfied he 
did not ai)piove the article, but I don't know 
whiit he said in disapproval of it. 

TESTIMONY OF N. P. HICKERSON. 

Mr. East here said that he proposed to offer 
the following testimony in evidence, which 
was rend : 

State of Tennessee— Tu thn matter of impeach- 
ment of tlie Hon. T. N. Frazier. 
W. v. Iliokerson, a witness for the defendant, 
says he Jir t became acquainied with the de- 
fendant at Jasper, in Mai i n county, in 1817 
From 1 hat time to the present he has kno^n 
him. IV .in 1853 or '.H intimaiey, and has since 
tnattiine known his general character as a 
m-.in, as a lawyer, and since his appoi itmont as 
.iudireiri I8ti4 tie has known his chancier as a 
judicial oliiier. His character in all the rela- 
"tiiins of life has been that ot a man of pure 
morals ami hig*i integrit-.; in faot he has never 
heai'd th' puritj' of liis motives questioned un- 
til since the commencement of the present pros 
ecution In the last of ISI^S or early in I8(i4 
Judge Frazi r inl'orme I me that he was forced 
by the oouimands of Champ Feigns u, Hughes 
and o'her leiiels to» flee from his home in 
Ea>r, Tei nes^ee, to Rutiierfoid county, in Mid- 
dle Ttn'ie see. In fact, as heinO;medme, he 
was rolibed by these men. He was, up to the 
time I leit Nashville in 1865. always regarded as 
aoecide-i anil unwavering (!nion man. After 
the decision of the writ oi habeas corpus i met 
Judge tf'iiiz er, and in conveisatiou as to his de- 
cision, he stated ihat he wa> vir. ually opposed 
to tlie revolutionary course of what he called 
the I loiters slating that he felt it woi Id have 
been much b'trer for the whole country for 
thi m to nave kept their seats; and that so far 
as he had any personal feeling in the matter, he 
desrcd to decidethe question arising upon the 
return of the writ the other way, but as a Judge 



he had to decide the caae according tolaw.and he 
could not find any authority to satisfy his mind ^ 
that I he law w as tlint way. Pending the Presi- • 
de.iitial canvass of iWU Judge F' azier and my- 
self reomed together a con!?iderabie time, arid 
frequently discussed the pending eleit'on. 
Fra/.ier was a decided and outspoken Lincoln 
man, being an Old Whig. He stated that he 
did not so much adsiire Johnson, but he was a 
supporter of that ticket. He was then a very 
de ii ed Union man. 

I know nothing ot Judge Frazier's views or 
associations at all upon the mretingi f the called 
session, or pending the proceedings up'n habeas 
corpu's. 1 have had no conversation With him 
on politics since May, 1865. 

W. P. HlCKEESON. 

The above deposition is true, to the best of 
my knowledge and beliel. 

W. P. HiCKERSON. 

Sworn to and subscribed beiore m»', this May 
18th, 1867. H. G Flagc, 

P. C. of the Couj't. 
The above deposition, it is agreed, shall be 
held subject to exceptions or to the comiJCLency 
of the matters deposed to. « 

Edward H East, 

W. J. f MITH. 

Mr. Ewing then said Ihathe wished the coun- 
sel for the State to itnderstand that the defe.ise 
would otfer in poof the articles of impeachment 
and the response of Judge Frazier. 

Mr. Trimble— We will consider them in proof. 
TESTIMONY OF E. A. OTIS. 

B. A. Otis was next sworn as a witness on the 
part of the respondent. 

Question by Mr. East— Captain Otis, will you 

st te to the court your name, and how long \ on 

have resided in Nashville? A. My name is E. 

A Otis: I reside in Nashville, and have been 

I pract cing law hire since March, 1805 

Q,. S ate, Cptain Otis, when and under what 
circumstances you became acquainted with 
Judge Frazier. and how long j on have knwa 
him. A. I became acquaintid witii Judge 
Frazier in August, 18ti3. It was at the begin- 
ning of what we ter ne I the Chickamai ga cam- 
paign, and Van (leave's division, of whnh I 
was Assistant Adjutant General, went over to 
I'ikeville. We were encamped on Judge 
Frazi'r's farm, and our divis on h-ailquarters 
were located on the lawn in front of li,-, h use, 
so that I saw hunotten, and got well acquaiuteil 
with him. Perhaps we stayed iheie two or 
three weeks. , 

Q. Has >our acquaintance been cntinuous 
since that time? A. Yes, sir; I remember that 
I was stationed th re and that .Judge Fra ier 
came from Murfr. eshoro to hold a Criminal 
Court, some time, I b^'lil•ve, in 1864. .Mn e I 
have been here I have met him ve y > ften 

Q. Y'ou have b'^en a practicing attorney in 
the courts 01 this d st' ict ? A. Y. s, sir. 

(i Are you arquiiiuted with Ih' (dia acer of 
.Jintge Frazier a- a m n and actizen, of ur 
own knowledge ? A. We 1, I ki ow his reputa- 
tion as a citizen and as a judge in this c mmu- 
nity. and I als ' knew h's reputation in Pikc- 
vilie, where he used to live. It was p ti t of the 
business of the military autho ities to know the 
poll i al vews of the prominent citizens in the 
country, and we had to know how Judge Fra- 
zier stood. 

Q. .Jnst state what you know of him. A. lu 
18f;H .Judge t raztei- was known to be an uncon- 
ditional Onion man, and was so rega.' d* d by all 
the mditaiy authorities. We also cons de red 
him an unliincning Union man. I vein- n her 
the lime well when he < arae to hold ih. court. 
t was protected by the Federal garrison 'ihe" 
military authorities we"e very glad t> see the 
civil courts in session for the purprse of r- - 
lieving the military commissions, and we 



116 



■workerl in harmony, and considered that we 
-were all engaged in the same cause. 
^ Q. Did he apiily through you to the General 
Commanding or General Van ( 'leave to aid and 
assist himV A. Yes, sir; I remember ot Ifis 
having been offered aid on several occasions, 
and that we were anxious to have the civil au- 
thority co-operate with the military in order to 
restore the country to prosperity so far as it 
could be d'>ne. 

Q. What's his character as a judge? A. Up 
to the time of tliis trial I never he ird his repu- 
tation called in question. It was that of an 
honest, upright, si. cere judge, a man who was 
extremely anxious to find out what the law 
was, and then to admin ster the law. With 
this smg'e exception I will say that I never 
heard his conduct ca' led in question. He was 
spoken of in the highest teruis of praise by all 
classes and Ijy men of all political classes, and 
by every man who knew him. 

Q. Have you had occasion to practice m his 
court any? A Not very extensively, although 
I have tried eases before Judge Frazier. 

Q. Y6u have seen other case^ tried of an ex- 
citing (;,haracter I suppose? Yes, sir; a number 
of times. * 

Q. All classes 6t citizens were being tried? 
A. Yes, sir. 

Q. And various appeals made to the court on 
political and other questions? A. Yes, sir. 

Q. Well, how has he administered the law? 
A. Always so far as my observation went, im- 
partially I ihought he simply desired to find 
out w hat the law was and to ad minister it, as I 
stated before 

C7-oss-jrxami?iation—Qaest\oi\ by Mr. May- 
nard— on say you have been pract cing law 
since the Spring ot 186.5? A. Ves, sir 

Q. H:ive you been here all this time? A. 
With the s ngle exception of the called session 
of the Legislature here. 

Q. What time ilid you leave? A. I left the 
second day of .July and did not return until the 
loth of August. 

Q. Then, you knew liothing ot the state of 
things here "at that period? A. I know nothing 
except what was told me. 

Q. Do you know no hing of a feeling of bit- 
terness and animosity towards the Legislature 
in reg !rd to the adoption of the consti utional 
amendmeni? A. ^o, sir. Ilett here before the 
Legislature met. I think it was on Monday, 
the second ot July. I did not get back here 
until alter the Legislature had adjourned. I 
think I got back liere on the 10 Ji ot Auumst. 

Q. You have beeen asked about Judge Fra- 
zier's general character, and especially his ju- 
dicial chajaeter. H ve you never heard of his 
leaning or giving away to what was consider- 
ed to be the great current of outsl le opinion? 
A. Mo, sir, with the sincle exception that I have 
heard his conduct very -harp y eriiici ed in 
connection with this hubias carpus caseof Wil- 
liams and IMartin, but beyond that I never 
heard an intimation of that kind. 

Q. AVas he trying theoidinary criminal causes 
of the countrj ? A. Y»s, sir. 

Q Well, of course, as you werenot here you 
do not know whether there was any pressure 
brought to bear upon him at that time or not ? 
A. No, sir. 

Q. You practiced very little, you say, in his 
court ? . Not very much in his court. 

Q. Were you there at the time he made his 
valedictory after he was impeach ;d ? A. Mo, 
sir. 

Q. You were not here at that time, and did 
not lieai- tliat speech? A. No, sir. 

Q. You have been on terms of intercourse 
with Jud^c Fraz:ei? A. Yes, sir, from the 
time I lirst got aequainttd with him. During 
the two or three weeks we wtre there I was at 
his house, and we became very intimate. I re- 
member going to him lor information in regard 
to the movements olthe enemy, and the general 



condition of affairs. When we came to Mur- 
freesboro we eudea%ored to co-operate as far as 
we could with the civil officers. Since he has 
been here 1 have n et him quite often. 

Q. Has he been at your office? A. He has 
been at my office. I have met him elsewhere, 
ami our inteicourse was always pleasant. 

tj. l)o\ou know his assooiatinns in the ciiv? 
A. Well, Mr. Stuliblefleld, Judge Gaut and 
oti-crs. and Mr. Spuriock. I have met him often 
at different law offices. 

Q. Did von SC! him with the rebel lawyers? 
A. Well. I cannot say that I h ive I may have 
see» him with the rebel lawyers, but not par- 
ticularly that I noticed 1 remember more 
particularly about meeting him in Judge 
Gaut's oilice, from the fact that I wanteii some 
injiiiiciionsor something of that kind, and was 
told that he was generally found there. 

TESTIMONY OF NEIL S. BKOWN. 

Gov. Neil S. Brown was next sworn as a \\it- 
ness for the delense. 

Question 1 y Mr. Ewing.— Yourname, sir ? A. 
Neil S. Brown. 

Q. Re?iden'e? A. Nashville. 

Q. Weie you acquainted with Judge Frazier 
at any time? A. Well, my lirst know edge of 
Ju 'ge Frazer was, I think, about tweu y j ears 
ago. 

Q. Where did he reside, sir, at that time? A. 
He resided at Pike iile. 

Q. Tell how you became acquainted w thhim, 
and what his character was at Pikeville. A. I 
became acquainted wi!h him there. I think I 
was candidate for Governor thit year. I made 
his acquaintance there. I knew him- as a law- 
yer ant as a citizen. At that per.od that ac- 
quaintance was not extensi\ e. 1 was casually 
in his town. My leal aequaintare witii him, 
howe\cr, ma^ be said lO have c miHienced siufle 
the termination o' the war and while he was 
Jud^tie of the Criminal Court of Davidson coun- 
ty. I have known him ever since i he termina- 
tion of the war. 

Q. Governor Brown, what is his character as 
a citizen, as a man and as a judge? a. U ell, 
sir. I think Jud c Fi azi« r has as |)Ure Jind just 
a character as any man I Icuow, boih as a man 
and a> a judge, i have met him occasionally 
in society, and I think the u iversal sentiment 
of all classes is that he is a pura, just, upright 
man. 

Q. Did you ever hear that questior ed by any- 
body until after the triiil ot this habeas corpus 
ca-e? A. Never. 

Q. Did you ever hear it questioned by any- 
body except in reference to the habeas corpus 
case? A. Never 

Q. Never before nor since? A. Never before 
nor since. 

(.i You say you have been in his court occa- 
sionally? A. "Yes, sir. 

Q. Do you recollect of any trials in which 
there were any political questions"''agitated, or in 
which there Avere parties tried who belonged 
to one side or the other in politi -s, or in which 
rebel soldiers were tried, or Federal soldiers 
or colored men? A 1 have seen trials there of 
allsoits. I do not know that I can recall any 
particular case that exemplified the classes you 
reier to. There were a great many indictments 
brought before him again?t F. deral soldiers 
and Confederate ^oldier.^ and cooved people and 
white people. I have seen him brought to the 
test as a judge in a variety of cases involving 
different snades of seniiment. 

Q. What has been your ooservation in re- 
gard to his conduct ;ind course, as to his delib- 
eration and as to his flrmness? A. I have often 
made the remark before tnis difficulty arose, 
that lie struck me as iiting a man of lemarka- 
ble impartiality, and a man ot great patience. 
1 was always impressed with the decided opin- 
ion that his m iiu object wa> to arrive at the 



117 



truth of the case. As to his flrmnrs?, T thiiilt 
he lias dis))layrd as miiort of ir in the trials I 
have witncsseil before him, us any jmlge could 
be pxpected to i^how. When he made up his 
miml, and took his position flnally, he w:is very 
firm. He was not ha^ty, however. 1 noticed 
that, charact' r 01 his mind. He is not a man 
that I'o ms his opinions hastily. He is a man 
very free from passion. I think. 

Q. Do you know iinytling of his poMtioal 
opinion-? A. AVijU, I ivnow simply about that 
from his character, and w at I he:.rd gtnerally, 
more than from anything I ever heird ir^m his 
own lips Ihavn tlioui;ht hi- was a Union man 
throughout, but he was a man very modest in 
the expiessiou of his opinio^is, and was never 
obtrusive. 

Q. Do you recollect the time when the habeas 
corpus case was before him? A I was not here 
then. I was in Giles county, visiting my rela- 
tives. This case was tried during my absence. 
I was gone, I suppose s me G\ e or six days, 
and a i I know of ir is what I saw in the pa- 
pers, and heard from j^entlemeu who were 
present 

Q. Did you ever hear him exprpss any opinion 
in regard'to the recusancy ot certain membt'i-s of 
the Legislature not at ending to tlieir duties'? 
A. I don't think lever had any conversat on 
Witli him on the subject. The case was over 
when I ome h me, but I heard him speak on 
thesubject about the tini" that the resolutions 
■were offered upon that matt r, bearing, I think, 
upon a point wnirh finally resulted in the pass- 
age of the articles of impeachment. 

Q. Sateit. A. If I remember rightly, his 
sentiments were against tlie cond'ct of those 
members o I the Legislature who left the'r sea s. 
I cantiot recall preciselj' what he said, but I feel 
confident he did express th:it sentiment, and 
that in tlie part he had taUen in this habeas 
corpus case he had ouly endeavored to do his 
duty. 

Cross-Examination. — Question by Mr. May- 
nard — I understood you to say, Gover^ or, that 
you have known him for a good many years? 
A. I knew him slightly before the war, sir. I 
knew h m first In 18f7 

Q. His character was that of a pui-e, upright 
and ho lest man, you sa. ? A Ves, sir, thit 
was his character. I think he was a Union 
man nd moderate in his teraner. and not over- 
bearing in the expre siou of his opinions at 
all. 

Q. 'Well, «uch being his character, please 
explain how it was thot ic was impossible for 
him to stay at home, and that the Southern 
Confedtracy or iis oOicers drove him fr m his 
home A. I cannot ex|)laiu that. sir. It nuut 
have been the result of that unjust violence 
which has been jerpetrated on both sides in 
various instances and for which I have no 
apology, and which I don't approve. Jf such 
a man as Judge Frazier was ever driven from 
his home it was done by violence and injustice, 
no matter who did it. 

Q. It w'as done against the wishes of the men 
that controlled the Southern Confederacy? A. 
You speak of those who controlled the couh- 
ern Con e'lerac\ at Kiohmonn? 

Q. Well, was it their « i-h? A. I cannot tell 
you about that. I had very little personal 
Knowledge of, and no corresi.on'ienco with the 
^int'emen who controlled the Southern Con- 
tederacy. I niay presume from what I have 
heard that t'ley uid not approve of it, but I 
don't know. 

Q Do you know whether they took any Pteps 
to prevent men of the character y lu describe 
the Judge to be from being disturbed? A. 
Well, I don't know', s-ir. 1 don't know what 
time he was compelled to leave, and I don't 
know whether the Conielerate authorities had 
any control over this State at that time or not. 

Q. Do you know what time Eost Tenne^sei- 
was taken possession of by the National forces? 



A. Well, T beleve it was in the fall of 1863. But 
I was not in Tennessee then myself. 

Q. And up to that tune the part of the coun- 
try where Judge Frazier lived was inside of 
ihe (.onfederate Imes, was itiiot? A.Weil, 
sir, from what I know it is rather a mixed ques- 
tion who had the ascendancy then'. Sometimes 
or:e party, and sometimes ani ther. I don't 
know precisely how it was. It was not exact- 
ly neutral territory, but it was teiritory at one 
time in the control of one tide, and then of an- 
other. 

Q. Well, vou Hre unable to exidain why Judge 
Frazier. being such a man as you say he was, 
was compelled to flee irom his home for refuge. 
A. I don't know, but I repeat that whoever 
drove such a nifin as Judge Kr;izierfrom his 
home, whether Fcder.ils or Confedenite^, com- 
Miitted an act of violence lor which I have no 
aiiolosry. 

C}. You have been asked whether you were 
here at the tune of the habeas corpus trial. 
Were you connected with that in any way ? A. 
Not the slightest, in the world. It began and 
tr<nsiiired. and was ended iluring my absence. 

Q. Was a civil suit brought in the name of 
those gentlemen, or either of them ? A. Yes, 
sir. 

Q Who was counsel? A. I don't know cer- 
t inly who brought the suit. I think, perhaps. 
Judge Brien and Mr. Colyar. But the gentle- 
m«'n who brought the suit, subieiinentiy spoke 
to me I don't know how far they relied on my 
services. 

Q. By whom were they employed? A. Bj' 
Martin and Williams. 

Q Have you seen them? A. Yes, sir. 

Q Do you look to them for a fee? A. Yes, sir, 
if there is any fee to be had. I am not a volun- 
teer. ^ 

Q Were you spoken to originally by Colyar? 
A. No, sir, tt ey brought the suit. 

Q. Do I understand you to siy that they 
spoketoyou? a. No. sir. Mirtin and Williams. 
I maj' be mistaken which of those gentlemen 
brought the suit. 

Q. You wee not hercwhen the habeas corpus 
cise came off? A. No, sir, I had no connection 
with it per.-ona'ly. It began, transpirel and 
endud befor^ I readied h me. 

(.},. Did you see Judge Frazier at any time 
during the war? A. I d )n'c think I did. 

Q. \V hen was the last time jou saw him be- 
f ire thn war? A. In 1849. 

Q When did you see him again? A. Not 
unt 1 since the war, and then 1 found him on 
the bench. 

Q You spoke of him as being a moderate 
Union man. A. Well, I don't know about his 
being a moderate Union man. He \' as a Union 
man, but a man ot moderation lu the expres- 
sion ot his opir, ions. 

Q Y''ou had no conversation with him after 
the war? A. No. sir. 

Q. Then what you know with regard to the 
toil:- of h s Unionism is derived irom what 
you heard him say after the war was over? A. 
1 es, sir. 

Y"". Then so far as you know, when the war 
w sg ling on, he was a good Union man? A. 
So far' as I know. 

Q. All you know then in regard to his attitude 
is what you he-ird him say tiller he war was 
over? A. Y'es, sir ; l)iit my knowledge of his 
opinions at that tune is very limiteet. 

Q Did you know of opinion he held during 
the war? No, sir, at that time I did not. 

TESTIMONY OF A. A. HYDE. 

Question by Mr East — Ple.ise state your 
name, residence and occupation. A. A. A. 
Hyde; occupation, a lawyer; residence, Jasper, 
Marion county. 

Q. Are you "acquainted with Judge Thos. N 
Frazier, and if so how long have you knowE 



118 



him? A. I have been acquainted with Judge 
Frazier about eighteen years. 

Q Are you related to nim by marriage or 
otlierwise? A. I am not related "to him iu any 
way. 

(> Were you associated with him in business? 
if so. when and liow long? A. I was his law 
partner from 185U uniil ihe oourts were sus- 
pended during the war. In 18B2, I think, the 
ia-t court was~ht Id 

Q Are you acquainted with his character as 
a man and a c t zen. A. I think I am, sir. 

Q. Well, bir, pie ise state what it is. A. His 
character is that of a truthful, conscientious, 
u plight man. 

(.^ What is his character as a citizen of the 
governmeni? A. In any station of life he is a 
good citizen. 

Q. Did you know bis political «entiments from 
1861 iip to the i)resent time, and iii i you know 
wliat part he toon in uolitics, or what was his 
relation to the state ai d National Governmei ts 
during that time, and what his private feelings 
were? If you had an opportunity of Irrrmving 
that, please state i'? A.I ha\e ki'own him for 
a great part of that time, wnd I have knoivn 
What his sentiments w.ve. In the fall of iSiiO — 
it raighr, h ive been earlier — in the spring — that 
I heard him make the first Union spee h I ever 
heard, in answer to Juiite E L. i-;arbtnhire. I 
know that this was before S'luth I'aroiii a se- 
ceded. I know that in liis speech Judge Gar- 
benhire said that ^outh Carolina w ii'd secede, 
and that f she did he was for her. Judge Fra- 
zier replied to liim, and 1 thouglit he replied 
very conclusively. 

Q. Were these public speeches ? A. Public 
speeches. 

Q. Just state, wh it Judg^ Frazier said, and 
state what was the character of his speech. A. 
His speech was nia le in opposition to &' cession 
!•! any orm. He opposed the secession doc- 
trine and his speech was what would be called 
a Uuion speech. 

Q. I will ask you how !ong it lasted. A. The 
spech? 

Q. Yes. sii-. A. I think probably two hours. 
The spi ech was made on o^e day by Judge 
Garbenhire, occupying probably all the time 
that was given. 1 thiuK. that Judge i'razier 
spoke the next day. * 

Q. To thesameandifnce? A The same audi- 
ence. I know that ihere wasastrong intlueiiie 
brought to hear upon Judge K'razier to abstain 
from luaUing that spie. h. Tliere were ih' re at 
thai, time meu w: o were stronger secessioniss 
and rphels t an could be founa any where eUe 
ih .Sequatchie Valley. 

Q. Did he coniinue to make such speeches as 
long as speaking was iiermi ted ? A. He was a 
candi; ate from ihe Uouting district to the con- 
Vt.niion. The electi ni wns heM, I think, in Feb- 
ruarv. The district i mbraces the coun:ies of 
B edsoe, Khea, Hamilton and Sequatc'iie, I 
think. He spoke a 1 o.er thatdistrict umil the 
tirre of ti.e de t'oii. 

Q What was the result ? A. The result was 
that he wasele tud to the convemion by an al- 
most unanimous vote. Wr. K. M. Key was op- 
posing him. 

Q. Did he continue to make speeches after 
that? A. I was not present nt any of them, hut 
I tliiii he always expressed himself dtcidedlj' 
as a Uuion man. 

Q. Had he heen known as a politician up to 
that time? A. In regar i to his expressing his 
sentiraenrs.I could state th it the lust limel 
met him in KastTenntssee, wis at his house in 
the fall of 18h2, after B ell's r< treat. « hen 
UnioH men were mor ■ gloomy there than at 
any other timu. If.undhiin then iinchanged 
in his opinions, although he was very despon- 
dent. 

Q. When did he move from Ilast Tennessee 
to .Sciiuaicliic V.dleyf A. I only know from 
hearsay ; 1 tliink it was in the spring of 1SG4. 



Q. In the spring of 1864? A. Yes, sir. 
Q. Where did he move to? A. To Rutherford 
county. 

Q. How long has he resided in Rutherford 
county with his fimily? A. I think about a 
year, perhaps two ■\eais. 

Q. In 18ti4-'65? A. Yes, sir, I think he resi- 
ded there two years. 

Q. Where did he i-eside next? A. His next 
reside'ice was xn t very far from the Lunatic 
Asylum, in this countv. 

Q. In this county? A In this county; his re- 
sidence is now in that vicinity. 

Q. Mr. Hyde, you have bee'n a long time as- 
sociated with Judge Frazier; now st.tto what 
his reputation is iu regard to uecision of cliar- 
acter. A. Judge Irazier is an ex eedingly 
ditlident man and rather distrustful of hi- own 
abilir.y. For that reason he always shrinks 
from assuming any r sponsibility. H ■ dislikes 
noioiif'ty and fhuns it, but after assunnng re- 
spoiisibilirv. or after it is for ed upon him, he 
is very firm and resolute and decided in liis 
opinions. 

Q. Is he a man characterized by paMence 
au'i toleration? A. Y'es. sir. he is a man of great 
patience. He arrivts slowly at opinions. He 
collects all ttie f.icts he c.in get, and then he 
forms his own ju igment. 

Q Is he an extreme man? No, sir, he is not 
an extreme man. 

Q. Is he a violent man iu his feelings-? A. No, 
sir. 

Q. Do you know anyth'ng in regard to 
Judge Frazier's opinion as to the habeas corpus 
case, otherwise t'i;in that contained in his opin- 
ion which was puldished? A. About that time 
I had a conversatimi with him. 

(I Well, sir, please scat^ it. A. He said he 
was opposeil to ttie action taken tiy those re- 
cvisant members of the Legi-latuie. He men- 
tione t the coniiuot of the immonal thirteen. and 
said that he had ;ilwiys been opposed to mem - 
hers vacatinif their seats. He al-o sa d that he 
reirarled their conduct as revoluti nary and 
M rong. He then said that if he could liave 
found any law to sustain the action of the I.eg- 
ishiture he would have decided the case differ- 
ently. 

Q. I will ask you what his character is as an 
honest, conscientious man? A. I don't think 
th( re is a mi're honest or conscit ntious man in 
the Stiiti'. 

Q. W ell, ill his private or public life whathas 
btett his character? A. Wei!, i-ir, he has al- 
waj's su^-tained the character of an honest, cen- 
sciei tious man, and has alwavs performed 
fairly, and promptly, and feat lesbly, the dutiis 
devolving upon him. 

tj. Do vou know anything of the c rcum- 
stanoes that hi ought him from Ka^t Tennessee 
to Middle' Tennesse' ? Was he a(;tnated only 
by an ordinary desire to ch:inge his residence? 
A. Well, sir, I have no personal knowledge of 
that. 1 was not then in Che country. I only 
knew ol this from report, and what I have 
beard from hiiusel' ana his lamily. I know 
that in the fall of 1863 he was i.t his residence 
in P keville. 1 heaid that he was attacked by 
Champ F> rguson's men there. 

Q Was his lite threatened and his property 
de troy, d? A. Yes, le was robbed and liis life 
threatened. The next I saw of him was in 
Ruthertonl counly in 1864. 

Cross- Examination by Mr. Mayniird. — How 
long do .\ on s y he had been a law partner of 
yours? A. From 185J. 

Q. Th t was about the time you commenced 
practicing, was it? A. Yes, sir; I oomnienced 
the practice of the law in 1848 I believe. 

Q "i oil weie then a ^ oung man and unaccus- 
tomed to the profession? A. Yes, sir. 

(I. You iir icticed with him from that t me till 
the war broke out ? A. Yes, sir. 
(J. You were asked about his decision in re- 



119 



gard to'the habeas corpus case. Were j-ou here at 
that time ? A. I was not, sir. 

(). WvYC you not in Nashville while that was 
going ou ? " A-. Not Avhile it was s^oing on. 

Q Where were y<ni at that time? A. I was 
in Ja-iper. The Circuit Court was in session at 
that time. 

Q. Well, di.l j'ou know about the proceeding? 
A. 1 knew about it only from newspaper ac- 
counts. 

Q. How long Avas it b'-fore you came here? A. 
Mv recollection now is that it was within a day 
ortwo alter the decision of the cause. 

tj .Arc AOu very positive, Mr. Hyde, that you 
were not here at that t.me'in the city ? A, \es, 
sir. 

Q. Were vnu here at Mr. Gate's room on Sum- 
mer street? A. I was, but not during the 
pendency of the trial. I am certain 1 was not. 

Q Try and reco lect when you came ncre. A. 
Well, the case was pending, a:.d I have been 
trying to refresh my memory. . 

Q. Did you not say th t ii the Judge did not 
decide the case on the side of the Legislature, 
■you would be surprised, I ecause joii had al- 
ways re^fsrded him as a Union man? A. I do 
not rei-oUecc ih.t. I am certain 1 was not here 
while the case was pending. 

Jie-dire<st-Exami>iatig7i.—Ciuestion by Mr. East 
— You ;ire a lawyer, I be ieve ? A. Yes, sir 

Q. Do you "ccupy any relation to the State 
Government? A. I am the Attorney-General 
lor the Fourth Circuit. 

Q. Did you sta'e how long you had filled the 
position of Attoriiej -Geneial f A. I was ap- 
ijoii.ted bv Governor Jotiu on in the fall of 1864, 
1 think, but I did not get home until the 1st of 
Sepiembtr, 1865. I was with Sh(.-rmau's expe- 
dition. 

Q. What is your iwsilion in regard to politics? 
A. Well, sir, I suppose I am a Kadical. 

TESTIMONY OF S. B. SPURLOCK. 

S. B. Spurlock was next called as a witness 
for the defense. 

Question by Mr. East— State your name. A. 
S. H. Spurlock 

Q. Residence? A. Nashville. 

Q. How long h.nve you resided here, and 
■where did you'coiue from? A I've re^ided here 
perhaus three or fnur years. I forinery re- 
sided in McMinnville, in Warren couuty. 

Q. Were you raised in Warren county? A. 
Yes. sir. 

Q. State whether Tou know or have known 
the nefeiiilant. Judge Frazier. A. I have been 
personally acquainted with Judge Frazier for 
some time. J have k: own him irom reputa- 
tion for several years, perhaps ten or flfteen, or 
more; I have known him for thut length of time 
by reputation. 

Q. vV hit is your occupation? A. I am a mer- 
chant here. 

ti. Wliiit were you doing in McMinnville? A. 
I followt'd luerch an Using, and traded in stock. 

Q ITea-e st ite his reputa ion, ftir Spurlock, 
if you know it as a n an, as a citizen, and as i 
Judge. A. I never have heard Judge Frazier's 
char.ict'r caT d into • ues'ion anywheie fic 
is a man that stands very high in the commu- 
nity where he hjs lived and where he was 
raised. H<? is a man of strict iutegrity and 
honor, and I do not think that any citizen in 
the country has a better reputation than he 
has. 

Q. Was that said of him by all classes of so- 
ciety? A. Yes, »ir, by i.ll elasse-s of society; 
I never heard his character called into ques 
tion. 

Q. What is his character as a Judge, in re- 
gard to partiality? A. in ver heard of any 
partiality. 

C OSS-Examination. — Question by Mr. May- 
nard— Are you a lawyer? A. No, sir. 



Q. Have you had much business in court? A. 
Yes, sir, I have been about courts considera- 
ble 

Q. Did Judge Frazier practice in tha*' court? 
A. I was frequently at his courts, and I would 
geneially attend his court to collect dues when 
he was at McMinnvi le. 

Q. W( 11, he was one of the oldest and most 
prominent lawyers where he practil•^d? A. 
Well, sir. he was considered a very able man. 

(J. Well, waN he known as one of the oldest 
'lawyers? A. Yes. sir. 

Q One of the most expericncd? A. Well, 
sir. tliere were some (dder lawy is at. McMinii- ' 
ville tluui Judge Frazier, but "he was a bout as 
old a lawyer, and as experienced, as any one in 
the country. 

Q. Well, sir, did you have much to do in his 
.cour? A. No, sir,! had nothing to do at all. 

Q. Did you have a i?oo I deal of intercourse 
with him? A. Well, sir. I have been in Judge 
Fruzier's society a good deal. 
Q. Were you here in Jiil>, 1860? A. Yes, sir. 
Q. What w.HS the tone and temper of tiie I'ub- 
lic feeling in the ci'y in ri gard to the State 
Government, especially in regard to the Leais- 
lature and their action upon the coustitution.al 
amwndment? A. AVdi, su-, I think thit there 
was consideralile 10' ling maiiifesteil. but all I 
know abou that was what I saw in t\\<- \>a.\ ers. 
I did not h ive anything to do with it myself, 
being no [olitician. 

CJ. Did you wiinoBs anything of this excite- 
ment as you passed about while attending to 
your bu'iH' ss? A. No, sir. 

(J. Did you hear men on the corners of the 
street cursing the Le.islatureand calling them, 
harsh names? A. Well, sir, I generally avoided 
all Mich crowds 

Q. And your knowledge whs derived from 
what you siw in the newspapers? A. Ves, sir. 
Q. "ioudid not participate in this any way 
yourself? A. No, sii. 

Q. Do ynu know whether there is in this 
community a pretty strong le' el element? A. 
Well, sir, there has been a pretty stwng rebel 
e e i.ent, t>;at is t-o termed l>y the Radicals. 

Q. Well, sir, M'hat do you term it? A. Well. 
I suppose that is the name you have t'jgive 
it. But tbey claim lo be Con>ervutives But 
for mystlf, 1 do not have any tern s for them. 

Q. Well, was it the elenniit that during the 
war was in re: ellion againsl the government? 
A. Well, sir, I found it a mi.xed elem nt. A 
great many of the-e m "U were in the war, and 
a great many w ere not in the war. 

Q Are they a class of men that call them- 
selves S uthern men? A. Many of them a. e. 

Q. That is the Conf derate term, is it not? 
A. Southern men teeins to be the Confederate 
term, 

TESTIMONl' OF DR. B. FRAZIER. 

Dr. B. Frazier, brother of the delendant, was 
next sworn as a witness for the defense. 

Question hy Blr. Fast— Dr. Frazier, state to 
the court vour name, yonr residence and what 
vou have been dnirig for the last two years, and 
your relati lu to the respondent. A. My naiie 
is 15. Krazer; I reside in Knox countv I have 
been a Senator in thf l.cr slature here, and 
was elei'ted in August. 1865 I have occupied 
that position ever since, and I am a hi other of 
the respondent. 

Q. When did Judge Frazier come to Nash- 
ville from Rast Tennessee? A. I think he came 
to Ruiherford county in Ft liruary. iSh4; per- 
haps it might have bee i a lirtli^ huer. I ihi"k 
that ■was t'le time he moved down. 1 think be 
rented a farm no'^ tar from the Lunatic, Asy- 
lum, and ab 'Ut three miles from here, and that 
he has been living there ever since. 

Q. Dr. Frazier, did you a'teml ihe called ses- 
sion of the Legislature which was convened in 
Julv, 1866? A. I did. 



120 



Q. What dav did yon cime to Nashvil'e? A. 
Well, [expected to be examined ia ltii< case, 
and I have consultcil the journals a little to re- 
i'l-t-sh my raeiaorv ;iiioutthat, [The witness here 
ref rred to his memoraudum.] I got liereou the 
3dol July. 

Q. What day of the week was that? A. 1 
think that it was Tuesday, if 1 am not mis- 
taken. 

y. When did you first see your brother, 
Thomas N. Frazier, after you reiched Nashville? 
A.- I did not see hira until Saturday, the 7th of 
July. On S itur lay he came lo toun. I had not 
seen him m town before. 1 do not think he was 
in town before ;^aturday, and I saw him Satur- 
day evening. 

Q. U:i(\ you inquired for him, or left xrord for 
him at hi-i" usual stopiiiug places ? A. Yes, sir, 
I had. I am jiretty i\eli satisfied he Avas not 
in town; besides, he told me that lie had not- 
been. 

Q. Then you first saw him on Saturday, after 
the 4th day of .July? A Yes. sir. 

Q. Did yoxi visit his residence? A. I was in 
the habit of spending the Sabbath with him. 
When 1 was hur« alt. nding the Legislature 
nearly every Saturday evening I we. t to ids 
house. When he was here hjlding Ids court 
himself he generally hid his bugg s-entin here 
and we went out together; buD he was not 
holding court at that tiui ■, but had come to 
town in his buggy that day, and I got into the 
buggy and went out with him. i did not go all 
the wav to his hou^e neither. 1 siarteil out 
with him. Mr Spuiloik ove took us on the 
way and stated to me that M ijor Thomp.^on 
was at his house, and wanted me to stay all 
night with lum, anil it was right on the road, 
and I stopped with him, and stayed there all 
night. 

Q When did you go out to the Judge's house? 
A. I went out there the next morning, Sunday 
morning. 

Q. lit fore you met Mr. .''purlock. or overtook 
Mr. Spuilock, or called to see Major '1 hompson, 
had you had any conv«isatiou with your 
brother on any other subieots than your rela- 
tionship and on ilom Stic matters? A. As we 
were going along we conversed on various 
maitL'rs. and the surjeot of th*? meeting of the 
Legislature came up. Tliere had heju no 
quorum obtained in the other House, and he 
was inquiring of^n-, or I wtis telling him, 1 
don't remember as to huw the conversation 
came up; but he was iuquiringof me someihin..^ 
about it. and I staled to him that thtre was no 
quorum in the other House that I thouHhi some 
of the meniiirs of the Legislature wer.; dis- 
posed not to come in, or to go awaytOMVOida 
quorum, and he said to me, " Well, you have 
no notion of doing any such thing?" I told 
him no, th it I » ad not. and he repli. d. in sub- 
staucH, I do not remember the wor.is exactly, 
'•That is right,yououghtuottodoauy .-uch thing 
asihat." heseemeil to express a<lis-ipprol'ation 
at the time, and wtut on to make pretcy strong 
remarks about it. I feei pretty >ure that he 
male thi^ remark, "Tliose foo.s in the Ltgida- 
ture are ruining their own cause by any .^uch 
action; a U;irty loses by undertaUing to do auy- 
thiug unlawful or an unlawful act." And then 
he referrel, as has been .-tated here, to 
the transaction that occurred a long time 
ago, to the "imrtiortal thirteen,'' and 
said that he hail seen iht-m come 
into the Legislature when it was proposed lo 
form a quorum to elect a United Sta'es sena- 
tor, and tha' h,^ luul seen thtm run out of the 
House, and that he considered it disgraceful, 
a»d I think he a s 1 r. ferrtd in the lOnver^a- 
tion to the conduct of the membtrs that i ad 
resigned along du inir the spri g btfore that 
lime, and said that it had resulted in a failure 
and deieat lo then, aiul that it was a 1 wrong 
to adopt any such cour»e as that. 1 have given 
the bub.-tauceof his language, and perhaps a 



portion of the words used. I do not know that 
I have given all of it. It was elicited in the 
course of tne conversation that we had as we 
traveled aim? in our buggy 

il. When did you return "to Nashville after 
that visit? A. I stayed out there until on 
Monday, July the 9th. 1 stayed during Sun- 
day, and Monday t came to town. 

Q. Did he come with you? A. I drn't think 
he dill. Iha^e no recollection of it. I have 
been trying t J bring my mind to bear on the 
question, but my impression is, at this time, 
that h • did noi. 

Q. 1 10 you know. Dr. Frazier, that your 
statem-nt lo Judge Frazier, in the evening go- 
ing out in the buggy on Saturday, was the Urst 
that he had h ard of the troubles in the Legis- 
lature? A. My iinpre-si 'U is that it was. I 
thiik that th it was the first intimation th it he 
had had. From the impression ihe conversa- 
tion marie upon uie, I am pi etty sure that he 
had had no iniimation of any such thing being 
in conti mpuuion at the time. 

Q. If he did not rtturn with you en Monday 
morning, when ilid you next ste him in .Nnsh- 
viUe? A. I do not tliink he was in >ia^hville 
again until the next Monday I went out to 
his house on Saturday. the n^xt Saturday again, 
and stayed with him during Sunday, aiuT on 
Monday he came in with me, and I am pretty 
Sure that he was not in town uuri g that ueek. 

Q. What did lie ■ ome to town that d ly tor. if 
you know? A. Well, my impression is that he 
told me as we came along, or before the Satur- 
diy, giving as a reason for c-imng with me 
that tie bad promised Mr Stubblcfleld t) come 
in and certuy to some bills of costs that were 
b ing ma'e out up in the Criminal Court 
Clerk's Office, and that he had to come in; that 
he had proniisi'd Stubblefield that he would 
come in, or something of ih \t kind 

Q. What are his tiabits about coming to town? 
A. Well, sir, he is very much disposed to stay 
at home whenever he can and wheneve his 
business does not require his attendance in 
town. 

Q. Did he have a farm in the country? A. 
Yes, sir. 

Q. Did he superintend it himself, personally? 
A. Yes, sir, he did. He worked upon it himself 
very frequently, as mu h as he was able 

Q Iwiila~k you whe her or not he spent 
very littie of his time in town, out-iile of the 
time occupied in holding his courts? A. Well, 
my observation ot that is confine 1 to the times 
when I was hiere attending the Legi-latuiv, and 
I know that he did spend very little of his 
tune here. 

Q. I will ask you in that connection if you 
know whether he had any newspapers, and if 
^o, wl'at papers? A. I d n't think he has 
taken any p ipers since the war. I don't think 
he has taken a political in'wspavier since the 
war. He occ isionally reads some papers. He 
has requested me frequently to bring him outi 
some p rticubr nevvspapeis, ami I have seen 
him occasionally reading some political [lapers, 
but he re ds political newspapers as Utile, I 
expect, as :;ny man in this county. 

Q*. I will ask you it the reading of those 
newspapers was not more connected with tiie 
decisif'us of the Siipi'eine Court as publi'hed, 
ana as relating to his business as a Judge? A. 
I know he has frequently inqui-ed alter news- 
papers that had tuose decisions in them, and I 
th nk he has a time or two asked me to bring 
him out certain papers that had certain deci- 
sions that he had heard of. or that he learneifin 
some way had been published in the nevvtpa- 
per,. 

Q. Ur. Frazier, you spoke of h's coming to 
town on Monday, as you think, to cer ify to 
some bills of costs. Do yo : know how long he 
remained in town that day? A. I think he was 
in town pretty much all day. 

tj. Was that the day that the petition for the 



121 



writ of habeas corpus was presented to him? 
A. Yes, sir, it was 

Q. You liad been with liim all clay bpfore at 
his hou»e? A. Yes, sir. I hail been with him 
all day ;it his house on the Sabbath. But I don't 
Icnowthat 1 was with him all day. He may 
have jfone off to visit some oue. I have no 
iccolk'ction about that now. 

Q. When did you first hear of the petition 
for the writ of habeas corpus? A. 1 1 ink the 
first iiiCormaiion that I had of it was that even- 
ing after the Senate adjourned Sumeboily 
came to me in the Senate I ere and said that 
they had Williams and probibly Martin, I am 
not surC; in the roi m, one of tho-e little ofliies 
here, a prisouiT, audi inquired of them some- 
thing about whut they Wire going to do with 
them. I had been slightly acquu,ir.ted with 
■Williams her.-, and had known him, and he was 
an East Tenne^sean. I sm not sure whether 
Mr. McFarla d or some other pei son inlormed 
me of his having been arrested and being there. 
At any rate, wc talked about it and concluded 
to go in and see him if we could get in. It was 
after the Legislature had :Mljourned in the 
evening. We went into the litt e olHce there; 
they wei'e in the room, Williams and Martin. 
I tliink Mtirtin was there. 1 am not right sure 
I fim not acquainted w th Martin at ail tint is 
I am h;nclly acquainted with him. Perhat)S I 
knew him tiy sight. We wei t in there, and I 
am not sure, but it strikes me ttiat Willi ms 
told me himse f that he " as arranging matters 
to get out. awiit of habeas corpus, or some 
bony did while I .was in there. I do not re- 
member who it was now, but I learned it while 
I was in there. 

t^. That was the same day that the petition 
was presented to Judge Frazier'? A. Yes, sir, 
that was the same day. That was in the even- 
ing, 1 am not sure. I thiutv we had two ses- 
sions. My impression now is that perhaps we 
had. 

Q Y'ou did not know on Sunday, when you 
were out at your bro hei's, that tiiere would be 
a petition presented? A. I had no knowledge 
of it, and I know that he had no knowle^Jge of 
it. 1 am sure if that. 

Q. Was -fudge Frazier much in the Legi-la- 
ture helore or since ? A.I don't tliink lever 
saw him in the Legislature here but about 
twice since it has been sitting here. 

Q. Do v(\\ know what his business wasthen ? 
A. I rernember he came tip here once, but I 
don't lemember what his i usiness was. It was 
some session of the Legislature along dining 
the winter before. 

Q 1 w li ask you if, when you saw your 
brother next aUer the petiiinn lor the habi as 
corpu> had been presented to him, whether you 
tilked with him? A. Y'es; I saw Dim late in 
the evening after the petition had been pre- 
sented to him, and had some little talk wiih 
him. 

Q. Was it in reference tn the petition? A. 
Yes, sir. The peiition had been written out, I 
sui>j ose, by some of the lawyers, and I wjis , o- 
inir down the sireet and I met .ludge Gaut, and 
he asked me where my broihtr was, or it my 
brosher was in town, and I tol i him 1 sup(jos jU 
he was, ihat he had come in with me that 
morning; and he then said to me th it they had 
petiti ued for a writ of habeas corpus to take this 
man William^ out of jail, or some words to that 
efl'ect. I don't r member, but my impre sion is 
that he said sonn thing like that, and that he 
wanted t > see my brother and ^et him to issue 
the writ of hibeas corpus. I said to 
him, " W^ell, Tom won't wai t to have 
anything to do with it," or something to tn:it 
efi'ect. "Well," said he, "dun't say anything 
about it if you see him iielore I do Maybe he 
may dodge us," or tome such expression as 
that, Hnd I went on down to the hotel, and 
was tiien sometime aoout on the s reets there, 
for I suppose an hour or two, and my brother 



came round to the Planters' Hotel. That is my 
recoUi ction. I was boarding tlicie at the 
time. Hf wanttd to know it I would not go 
bacli out home, an i ho told mo then tiiat there 
had been a petition for a writ of habeas cor- 
pus prisented to him, and he seemed worried 
about it. He seemed like he was troubled 
about it, and ex))ressed something ol that kind, 
but I don't knoiv what it was, and 
I told him something about the inter- 
view I had with Judge Gaut, and said that 
if I had known that he was opposed to it I v\ ould 
have seen iiim and told him to go home. He 
said he wished I had, and that if I litid they 
would not have got him into such a scrape — 
something ot that kind. I nsked him what 
was the reason he could not have rejected it, 
and lie said that he was obi ged to issue it; that 
the law was imjjerative upon him to issue 
the writ, and that it he had not done it he would 
have been liable for a misdemeanor, or some 
such languasre as that; that he was compelled 
to issue the writ, that he considered it so. He 
p irted with me atthiit time andlnid not see 
him any more unt 1 the next morning. 

Q. State where you saw him, and all that 
took (dace. A. 'i he next morning — theiact is, 
1 diu't think I saw him the next morning until 
alter the court met in the court house to dis- 
cus this question. I d m t remember that I 
cid. 1 might have seen him, but 1 have no re- 
collection of seeing him the next morning. It 
wa- in the evening; I think it was iiiter the 
Senate hud adjouined. I saw him tlie next 
day. He went on home, and I su)ipose he came 
back the next morniog. I did not see him that 
I remember of. Imi.chthave seen him, but I 
have no recolleciion ol it. 

Q. Idd he stute to ynu the reason why he dis- 
liked to act in matters of that kind? A. Well, 
I don't k..ow that he gave much reason at that 
time. He indicated to me a desire to avoid the 
business that was about to come betore him, 
that it was a question involvin.g a very grt at 
deal ot responsibility, and that he wanted to 
avoid the re-ponsibility if he could easily. 
That was the impression ma'le upon me. I 
don't remember that housed those words, but 
that was the impression 1 drew Irom his lan- 
gUHge and from the eeneral tenor ot what he 
said as to his reluctance to issue the writ. 

Q Did you hear the argument of the counsel 
in liie habeas corpus case? Wete you present 
at any time? A. I was presi nt the first day af- 
ter the c-ei.ate adjourned. I think the time was 
set for about one o'clock, perhaps, for the dis- 
cussion to commence. After the Senate ad- 
journed we all Went down there and w ent into 
the colli t house. I heard the di-cussi ms that 
evening. There were two speeches—no, there 
were three. There were Mr. Harrison and 
Judge Gaut and Mr. Colyar. All thr e made 
speeches tli,at evening upon that question. 

Q. l)r. Frazier, during the pending of that 
trial, did jou hear or have any occasion 
to know what your brother's feelings were in 
regard to the conduct of the members? Did 
you go home with him any night during that 
trial? A. Y'es, sir, I wenthoiue with him that 
night. 

Q. That was Tuesday night? A. That was 
iuesday night. 

y. Did you have any conversation with him 
about it? A. He came to me. I knew that the 
Senate would not oe in session the next day. I 
remember that we adj'urnf d over, but J was 
sati- tied that ihere would be nothing done the 
next day, and I concluded togo out there and stay 
It was veiy hot weather, and I do not recollect 
anything about hearing the discussion. It was 
much more pleasant out there, and ! concluded 
to go there and stay until the qutstiou was 
Settled. 

Q. You went out with him, then, on Tuesday 
night? A. Yes, si"'. 
y. Did you have any conversaaon with him 



122 



iTi regard to the trial? A. The question had 
come up in the trial aliout whether he should 
not require the pre-ence of Williams and Mar- 
tin heioie the trial of the case went on. 1 
state ihis as giving un explanation of the con- 
versation that occurred between us. As we 
wero going along we talked generally ahout 
the speeches; tliat is. in a general way. I said, 
to hi ui, ' Tom, I think your dei'ision to ke 'p 
those men in prison there until you heard the 
■wliole discussion of the quest on liore pretty 
hard upon Williams. I saw him the other 
night, and he is up there, lying ve«ry uncom- 
lortahly. I think you might have ordered him 
to more comfortable quarters," or soiiiething 
like that; and he reilied to me, ' Gouiound the 
rase lis I have no sympathy with them They 
ought to suflerfor deserting their posts." vveii, 
I made some remark, that it was pretty hard 
lor him, th^ittiehai heenl^^ingup there two 
or three nifihts How long he hail bei-n there 
I do not remember, l)ut I said th it it was piet ■ 
ty hard <or him, and t made use of that sort of 
language. He said that he h id no sympathy 
with Williams, whatever. That is, I think, 
about the reply he made to me. 

Q. "i'ou remained the next day oiit at your 
brother's house, I believe? A. Ve^, sir 

Q. That was Wednesdav ? A. I did not come to 
town on W'ednesday. 

Q. He came ro town? A. Yes. sir, the discus- 
sion was the evening before. It was aajourned 
until 9 o'c ock the next day, I believe. 

Q. On Wednesday? A. On Wednesday. 

Q. Did he conii totown,le ivingyououtthere? 
A. Yes, sir, he came to town in his buggy, and 
came in i^retty early. 

Q. Did he return that night again? A. Yes 
sir, he returned that night. 

Q- The trial had not concluded then, I be- 
lieve? A. No; he stati-d to me that the trial 
was not over. He seemed to be very much af- 
lectetl, and seemed to be exceedingly wearied 
and harasserl, both in liody and mind. It was 
verj' hot weather, and his'healih was not very 
vigorcius, and lie was very much latiguel. lie 
Stated to me when he came back tht. Judge 
Brien and Mr. Trimble had both ma le spetches, 
and that they were trying to make it a political 
question, and th»t he had checked tlitm and 
had called tt em to onler, and tried to get thim 
not to discuss it in that way. He said thithe 
did not consitlir that there was any politico 
in it; that it was purely a question of 
law; that it had no politics in it; but, 
nevertheiivs, he said he could not keep them 
from it, and that he was exceedingly sorrj'tiiat 
the discufSion had gone on in that way, that it 
producrd an un|.lea(^ant state of ieeling in the 
country, but that he could not help it; and he 
state I that nr)twithstanding the question had 
been discussed in that way, he was determined 
to decide the case just according to what he 
considered the law was, without regard o 
copsequeiices; that he WHS compelled to do it, 
and t at he >hould decide it in that way, irre- 
sppctive of the consequences. 

Q. I'' as that alter the entire discussion was 
over? A. That was alter the entire discussion 
Was ov r. 

Q Did he prepare his opinion at his resi- 
dence? A. Ye^, sir. h - wrote his opinion at his 
house, and bioufht out several boolis with him. 
I think helirought out sume books. I think lie 
hal taiten >oiiie hnoks the eve ling beibre ttiat 
is, M heji I went out w it . him. I do not ri mem- 
ber what they were, but then- were sever d 
books, and 1 ihinii he broujfhtsome more books 
that C' enmg He went into h's oflice. He had 
a little otlice that was out a little piece from his 
house He went into his ollice and shut him- 
self up there, and lemained there I do not 
kno>v how long, that night. It was late before 
he left his olli -e. 1 went to bed tintty soon and 
leit him in there. In fact, he came honn.^ pretty 
early. I suppose it was about two o'clock, uutl 



he said he had to render an O' inion, I think, 
prub ibly the next day at three o'clock, and that 
he had toexamine the question caei'uily and 
critically. He remained In there lite. "but I 
don't think he flnt-hed his decision that even- 
ing. My reiollection is i hat he had not com- 
pleted it. I think I asked him at breakfa t if he 
had completed his decision, and he told me that 
he hid not, that he had set up i good pan of the 
n ght. butthat he had not got it done yet, or 
som.thinicot that sort, fje went bach into his 
oflice and stayed there a good while. Well, we 
had to return at an earlv'hour, against the time 
thao he had arpointel to be her ■ to deliver his 
opinion. I don't think he did reach here as soon 
as he had appointed. 

Q. Did you come wi^h him? A. Yes, sir, I 
I a me with him. 

Q. Did you remain in town? A. Yes, sir, I 
remained in town. 

Q. Were you present when the decision 
Was giv«n, or when the opinion was read ? A. 
Yes, -ir. 

Q. It was a written ojiinion ? A. Yes, sir. 

Q. And read? A. "ies. sir. 

Q. Did you see that opinion a day nr two af- 
terwards in the Press and Tiues? A. Yes, 
sir, I think I saw it, and perhijis in all the 
newspapers. 1 remember seeing it in some of 
the newspapers. 

Q. Was there any person present at a y time 
during the preparing of the opinion ? A. I 
thiuK not, sir; 1 was as neir jiresentas any body 
tnat was ai out there. I was, in here in the 
evening, and portions of the time afc-r he came 
home, i was in his office ami he read me some 
points of law bearing on the question from two 
or three law books. I don't remember what 
they were now. 

Q. Docior Fnizier, did you have iny inUm''- 
tion of what the opinion was. or whaT it would 
bi ? A. Not in the least. I had my impresiinn 
before the opinion wa> deliver' d, that is. before 
he read it to me. From the litte SMupaihy he 
had manifested towinis these men I felt almost 
sure that he would det rmine the quest on 
the other way. I did not know abmir. the 
legal question, and I was exptcriog the de- 
cision to be m ide the oth r way ir m t e man- 
ner in which he had expressed himseli about 
these men. He did not state any thing of ihat 
sort. 

Q The opinion was clearly ma eup ind coni- 
pleied beiorc you had any knovvledsre of r? A. 
Any knowledge of It. He read me the oj)inion 
there after he g^t through w th it, and stated 
to ine ttiat he ilid not wi^h me to sav anv thing 
abmtitunil he deliV' red it. VVegotiniothe 
bu ,'mv and c une on to town togeiher and went 
into th' court house and he read the opinion. 

Q Did you go out with tini afier thi; opinion 
was delivered ? A. I lii i not go outwittihim. 

Q. Did you see h.m afcerwuvds at all, at any 
other time ? A. Yes, sir, I saw him tnat even- 
ing afterwards. 

Q. Did you have any conversation with 
him? A. i ilo not know that I had any con- 
ver-ation with him. I saw rim — wep, just as 
soon as the op nion was delivered. They came 
and staled til him, or there w.s some applica- 
tion immediately ni ide to hi o about another 
petition lOr Martin before he got ofl" the Wench, 
and lie begged them to excuse him ai d to go to 
som body else, that he had iiad trouble en ugh 
with it. "and thev insisted that there would ne 
no •.irKument upon it; ih it the quetion would 
not have to be argued over ngaiu: that it ^vould 
take him but a very short time; th it the main 
a' guineu'- h d alieady been delivered, and ihey 
induced him to agree to it. Wei , iliey tressed 
it upon lum to grant that application for a 
writ. 

(}. Who are "they" that you allmle to? A. 
W'ell. Jnilg." Gaut. Mr. Brien and Mr. Colyar, 
I b.lieve, were all the lawyers cliat wsre at- 



123 



tenrlinpr to the case on the side of the members 
of the Le!Jrisl;i.tiii'e. 

Q. Do you know anything about the issuing 
of an attiichiuent for Caut. Hyydt? A. Well, 
I was going on to state. As soon as heliad agi-eed 
toissiiethe other writ, he called me uii or 
bcck'au'd to me to come up there, and srdd to 
me thit he expected that he could n^t go home 
that niaht. that he wo\il-l have to stty all 
night in iown, and that he wanted nie to go out 
to'his house and let his lamily know that he 
could not come home, so that they would not b>' 
uneasy abou' hiui. His health "was very bad 
and tlie weather was exceedingly hot, and they 
wotild want to know what was the matter th it 
he did not conic home, and he wanted me to go 
out and let them know that he (;oulil not conae. 
He said that it would take a while, and that he 
would go over to Judge Gaul's office and wait 
some time, and then he would let me know 
whether he could get off or not. I iefr. him then 
and came Oil up to the li itel; or I don't know 
where I went to. somewhere about over in 
town. In an hour or so — I don't know but he 
set the narticul.tr time 1 was to s e bm at 
Judge Gau's office. I went there and went in 
and "saw him, and he told me that he cndd not 
get to go home that night, aod he wanted me to 
go to h s house and tell his family that he could 
not come home. Well, I was in there. I think 
the attach'uent pipers had been issued at vhe 
courthouse. I don't remember now ab)ut it. 
1 don't remember where i had been ii-sueil or 
how long, but ihe Sheriff came down there 
■while I was there. I believe inst aliout the 
time I catne in. He came bnck from 
the Capitol ai d st:ited that he had gone up 
there to execute the attachm nt. and that 
they would not let him in, and that he had 
come bick t" get instruct ons what to do, ihat 
the doors were shut at the Capitol, and tliat thej' 
wouM not Irt him in ; that he had cime b ick to 
get instructions from the Judge, wi at to do 
Jndse Gaut was m there, and 1 am not right 
certain whether Col. Heskell W'S there. I 
think there were two or three and .Tndge Bi-ien 
may have been thei e, but I don't rememberdis- 
tinctlv anybody but Judge Gaut. When the 
Sheriff came in t eie ami stated that. Judge 
Gant got the C ide probably, or S')nie law book, 
anil rea I some law, authorizing the Sheriff to 
execute li'S writ if he had to bretk into a house, 
and went on to state that he had the right to 
break into the Capitol, according 'o law, to ex- 
ecute his writ. My brother stated that al- 
though he misrht'have the right bylaw, it 
Avould be very imjirudent ti do any .'■uch 
thing as that, thatitmiijht create a riot and 
mob. and for him to go back t) th'; Capitol, and 
state to the members of the Legislature, if they 
were inside, or all^ body that was there, thai 
he had a civil process to execute, and that he 
did not want to produce any excitement or dis- 
turbance in town. He went on to state to him: 
" Do you t 11 them that I have a rig :t to sum- 
mons everybody in town, but I don't Want to 
doit it might produce a not. You tell them 
that, and induce them ti submit to the execu 
tion of the writ " ! his was the substince o' 
wh:t he toll I the Sheriff. I don't kiiowtha 
that was exnctly the language, but I remember 
very fU^ttinctlv that that was the subtmceof 
it, and Judge Gaut acquiesced in it as being a 
proper course to pursue, and the Sheriff went 
off and I did not see anything moie of him. I 
left there directly afterwards, and went ami 
got into his buggy and went out to his house, 
and left him here in town 

Q. Did not Judge Krazier tell the Sheritfnot 
to be in a hurry to do it, but to w it uiuil next 
morning? A. The declara ions to the ^'herjir 
were not to be in a hurrv about it, that there 
was no nee ssity to be in a hurry about it. to 
waituu'ilth- next morning if neces-ary, but 
to commit no acts of violence I remember tlis- 
tinctly that it was state! for him to wait until 



the next morning. I don't know that I know 
anyihing beaiingon th" iiuestion further than 
I have stated. I have been Inng and intimate- 
ly acquainted with my brother, that is, I may 
say we have ocen very intimate friends, even 
lOrbr.thers, and when 1 have been down here, 
I h ive been with him a great deal, and went 
out to his house always on the Sabbath, and 
knew as mueh ; nd hud as good an oijportun.ty 
of iin insight into his mind as anybody. 1 s at'i 
that in or(U^r to show the relationship, orihe 
soc al relationship, that existed between us at 
the time. 

Cross- Examination. — Question by Mr. INIay- 
nard — As 1 understand you to say you have 
been very intimately and closely associated 
with himfor a great many years, even for per- 
sor.s occupying the relationship of brothers? 
A. Well, I have not lived near to him for eight 
or ten years. I used to live in the same town 
where he did, but we hive coi responded a 
great d-a', and ha e ki own each ot u r's minds 
jiretty intimately and closely — perhaps, as any 
two brothers ever did. 

tj. You hive gen rally been pretty much in 
harmmy in your opinion^, have j on notv A. 
Well.we have sometimes differed in our opinions. 
In the main, we have agreed, but upon some po- 
ll' ica questijiis perhaps, we have difl'ered. In 
the main, however, we have agreed. 

Q Why did your brother say to the Sheriff 
that he should not use any v olen''e, and tell 
him to wait until motning? A WeU, there 
was a good deal of excitement in the city, and 
there is alwavs a violent element about in every 
co'umurity, I reckon. Ttieie was at that time 
a feeling jii-t like hough they would like to 
cime up here and take the man rudely out of 
the house by forct;. There wa-) that intention, I 
th 'tight, manifested by some per>ous .hat i had 
met with, and I supposed he had discovered 
th.it, also. 

Q. So the feeling was very strong toward the 
Legislature? A. We'd there wjs a feeling of in- 
tense oppo ition to the Legislature. 

Q Oi hatred? A. AVell, I think there was a 
good deal 01' hatred mnifsted ly some men 
loward the acts of the Legi>l iture, and proba- 
biy some of the members of the Legislature 

Q That you say you Knew and your brother 
knew? A. W^ell, Ido not know how tar he 
kuew it. I knew it, I think, a good deal better 
than he did. I w.is here around. 

Q Yi u s ly Judu:e Gaut lail down the law 
there, and y ur brother acquies ed in it, that 
they were authorize i to break into any en- 
closui e to get access to these men but that your 
bi other rai her sugaesied or iniimated that ihey 
should not proceed ti) violence? A. Well, be did 
not suj!gest or intimde. He ju'-t told the 
Sheriff' d stinc ly to do no acts ot violence, and 
after 'udge Gaut had read what he did, he ac- 
quie,~cedin it, but not altogether. Be ac- 
quiesied in this way. His language was that 
that might be the law, but that it wa- very 
i. I prudent and wrcmg to put it in prai ti e. 

Q. How many men had the Sheriff along 
wi:h bim? A Well I don't think there were 
but two. My impression is that there were 
but two who came down there. 

Q Where was that did you say? A. That waa 
at Judge uaut's office. 

Q. Down here on Cedar street? Yes, sir. 

Q. I under-taiid you to say that Judge Gaut 
was present, that Speaker Heiskell was pres- 
ent, mid that you think that Judge ^rien was 
present? A. He might have been present. 

Q. How about Mr. Colyar? A. Well, I don't 
remember. 

(I. Wh t day was that? A. I suppose it was 
4 o'clock when tne decision was made, perhaps 
it was six o'eJock. 

Q. Did the Sheriff start up this way? A. 
Yes, sir. 

Q Was it the Sheriff or one of his deputies? 



12-t 



A. I don't know whether it was the Sheriff or 
not. 

Q. The one that had the proc?ss any way ? A. 
The one th it had the process My impression 
now is that h ■ 1< ft the oflice about the time, I 
think, th;it the Sheriff came in. I think just 
about the time, bur. I do not know. It strikes 
me now that he diii start up this way, but I 
have no distinct remembrance of it. 

Q. D:d Judge Gaut exhibit a good deal of 
feeling? A. Well, h.' seeme I to have as much 
feeling as a man could well have t j succeed in 
his case. 

Q. Did he express himself with a gooil deal of 
warmth M'lien tlie officer came down there and 
told him that the doors were closeil? A. I do 
not remember any language that he used. I 
think he just picked up a book a*; soon as the 
Sheriff came in .md hunted out for some law on 
the subject, a'id read it, and then stated to the 
f^heriQ that he had authority to break o))en the 
House if it was necessary, in order to execute 
the writ 

CJ. Did the Sheriflfsay who was opposing him? 
Did he say it was the porters and others abuut 
the Hou-e? A. I think he siid something 
abmt sonti-body being inside; that he saw a 
negro. 'Ihat is the way it strikes me. 

Q. Did he say a negro or a "nigger?" A. I 
think he said .something about seeing a ?k?^/'o 
inside of the House with a pistol, or may be 
more thun one — I don't remember now — and 
that he had seen members of the legislat re 
about there. It strides me that he said he had 
seen some members oi' the J^egislature about 
there > hat is fiom the recollection of what 
my brother said to me afterwards. 'Ihe im- 
pression on my miml i , that he said something 
about some members of the Legislatme being- 
there. 

Q. He had the writ, as I understand, in his 
baud — the precept — and he said that he had 
come up here and was unible to get into the 
buildiiig, and4hen went back and reported to 
your brother, the Judge? A. Ye-;, sir. 

A. Just repeat. M'hat took place when he 
made his renort? A. Well, Judge Gaut got the 
Code. I think. At any rate it was a law bojk. 
I am not sure now wiieiher it was the Code or 
not. It was some law book, and he real — well, 
now it may be a decision of the Supreme Court; 
I am not right certain about that; but he re.»(l 
some law upon which he precJicati fi the id' a 
that a Sheril^' was authorized to break into a 
house, and lie exoressed himseif in that way. 
My bro her stated to him th, t aith ugh th it 
might bn so, that thatmight be the law, it would 
be very imprudent and improper to do such a 
thing on the present occasion; that it might 
create a riot, and for him to go 'ack to the Cap- 
itol and state to tiiose inside, whoever they 
were, what was his business, in a qi let. {leace- 
able way, and to avoid d ing any act of vio- 
lence, and to wait until next morning rather 
than le in a hurry ubout it; thai there was no 
necessity for being in a hurry about it— to wait 
until ne.\t morning, and that by the next morn- 
ing he had but, little doubt but that the thing 
won d all be done. 

Q. Were you there the next morning when 
they had Captain Heydt under arrest? A. No, 
sir. I was not. 

Q You say tou came here as a member ot the 
Senate on the 3d of July? A Yes, sir 

(.) You don't remember seeing your brother 
until :^atur(,lay, the 7th ? A. >o,sir. 

Q, You then went with him part way to his 
house? A. Yes, sir. 

Q. Y'oii stopped with Senator Thompson ? A. 
Yes, sir. 

Q. You say that in that interview with your 
brother you told him there was a purpose o 
defeat the action of the I>egi>latuye by prevent- 
ing a quorum in the House 1 A. Yes, sir; I 
was talking to him about some members of the 



T^egislature who did not seem disposed to come 
up. 

Q. Well, just go on and state what y^u told 
him they were doing. A. My impression is that 
1 told him that some members of the Legisla- 
ture were not disp sed to cnme to Nashville, or 
tliat I hey were disposed loleaveia order to pre- 
vent a quorum. 

Q. Dili you ted him whether there had been 
an V meeting, any conference, on thac subject, 
am mg disiffected members? A .Vo, sir, I 
know I did not, because I did not know of any, 
and I di I not tell him what I cii I not ■; n w. 

(4 Well, were there any such conlerences held? 
A. Not that I know of. There were several 
members ol the Legislature that I w^^s most fa- 
miliar w ith, of that cl ss whom I had heai-d ex- 
press th' mselves, or one or two, at 1* ast. I 
know that Mr. Foster talked to me, a id said 
that he was going- home ; I think it was the next 
week. I don't think it was ihat week. Proba- 
bly 1 may have heard some oiher members ex- 
press themselves in the same way, that they 
were uoinghome. 

Q. Mr Foter was from Hamil on county, and 
had been elected in the place ot Mr. Hood ? A. 
Yes, sir. 

Q. Well, what others did you hear say they 
were going hoii.e ? A. I don't remember who 
they Were, but my impression is that some oth- 
ers told me so. 

Q. md thev say why they were going home ? 
A. They said they were not going to stay here 
t J make, up a quorum. 

Q Did they express a purpose to def'ett the 
action of the Legislature by absenting them- 
selves? A. Yes. 

Q. Did you tell your brothor*thit? A. I 
don't think I (lid any more than wliat I have 
told you a out it I don't think I saiil anythinif 
to him about it. Th ise persons that 1 spe ik of 
as h.iving hdd a conver ation with me I think 
had not said anything to me then. There were 
Some iudieations, though,in the House that there 
would not be a quorum. 

Q. AS I undeist ind your testimony vou went 
out with him the succeeding >aturdo'''' -^• 
No, sir, I tlid not go out witn him the succeed- 
ing Satulda}^ 

Q. Uid not goout ou Saturday? A. I went 
otii there on Saturday, Init I did not go wdh 
him. When he was uolding court here he was 
in the hd)it of sending his buggy out to go 
home on Saturday eve' ing. 

Q Well, you went and stayetl over Sunday? 
A. Yes, sir. 

(J. Well, did you have a conversation wilh 
him at that time about the House, and about a 
quorum and S'l lorth? A. I think we did. He 
asKed me something aboi t what thev were do- 
ing in the Legislatui e, and wiiethtr they had 
got a quorum or i ot. I don't remember the 
particular conversatio'i. but I ihink ital' gether 
probjbie that I stated t ■ him what had occurred 
or what was doing in the Legislature. 

Q. Did you te'l h ui about aay interference by 
gentlemen who had been eiectid nein ers of 
Ciingress, or about any int rference by the 
I'resident of the United Sta es? A. No, sir, I 
did not know anything ab ut it 

CJ Dill joii have no conv'-r ation on that 
subject? A. I had the information tifterwaids 
that Johnson— well, it was rum )re I iibout 
here that fn sideiit Johnson was opposi d to the 
ameniment. that he di<l not want a quorum, 
but as to part cular, tleflnite iniormatiou at that 
time I have no knowledge. 

Q. Were there any lelegraiih c dispa'ches 
exiubited? A. Not to me. There might have 
been. 

Q Y^ou say you tiilked with your brother the 
second Sunday you weie there; that you talked 
over all these mutters ? A. Well, I ilon't know 
how much we talked them over. I was there 
during the day, and 1 nre>ume that I told him 
about the condition of affairs in the Legisla- 



125 



ture, but I don't recollect the particular conver- 
sation I had with him in regard to it 

Q. But you rio recollect, it I understand you 
correctly, that as early as Saturday the 7'h of 
the montli. in rldinsout witli him. you told him 
of tlic allt'iii|it made to prevent a quorum, and 
tliat he xv as iulormed ol' it at least that early? 
A. I told him ihat I tliougiit there was an in- 
tention on the part ol' some membLrs of the 
Les^islaturo to prevent a quorum. 

Q And when ^ou stayid the next Sunday 
there he inquired of you and you gave him such 
information as you had? A. Yes. sir. I think 
so, I have r,o doubt but wh it I gave ih". inior- 
mation til it was astir here in tlie Legislature, 
though I don't have any distinct recollection of 
it. I expect I toid him the state of things, that 
we were wailing and expi-cing to get a quo- 
rum. 

Q. State whethrr there had been any assem- 
blage or any meeting if the opiwsing members 
at any time looking to action in that regard. A. 
■yV'ell, sir, if there was they did not let me Know 
anytiiing about it 

Q D'vou I. now anything about a meeting 
held at Uio Commercial Hotel? A. I do not. I 
have no knowledge of any meeting being held 
there. 

Q. Did you ever see Judge Butler there at 
anv time? A. I tliink it likely that 1 did see 
Judge Butler there. It seems to mo I saw him, 
but 1 don't know whether it was at that time 
or not. I rem mber teeinsr him here some time 
during the s,-s>ion of the Legi.-lature. 

Q. Do you recollect a ni'etng at which Gov. 
Campbell was present; that is, aft-rttie meet- 
ing of the Legislature and before the trial of 
the habtas coitus case ? A. A t that time ? 

Q. Yes, afterthe meeting of the Legislature, 
and before the trial of the habeas corpus case? 
A. No, sir. 

Q. Was he here in the city? A. Well sir, if 
he wa■^, I don't reniLmber it. He might have 
bten. but 1 don't remember it. 1 remember sci'- 
in him just about the time we adjourned, and 
they had a ui'eting. It was not a caucu-. 
though. It was a puhlic mee ing that they had 
at the courthouse, I believe, about the time we 
adjourned — no, it was at the market hou-e, up 
in the Recorder's rooM., perhaps. 

Q. Wtieu was it you Say you went to see Mr. 
Williams and Mr. Martin, when under arrest"? 
A. Weil,niy impression is th it it was the even- 
ing that ihey got out the habeas corpus. 

Q What time? A. Well, it may have been, 
and pro-jably was, after we had adjourned, al- 
ter dinner. 

Q. Between the forenoon and afternoon ses- 
sions? A Will, I could not say whith-r it 
was that time, or whether it was after that 
time. 

CJ. Who went with you? A. Well, I am not 
able to te 1 youth.it, di tinctly. 

Q. Well, who was there at the time you were? 
A. Well, it eems to strike me that Carrigan 
was there, or McFarlaud, ard ihere weie one or 
two ethers that I don't recollect. 

Q. Do you mean Senator Carrigan and Sena- 
tor Mcfarland? A. Yes, Sir, and I might be 
mistaken as to otlier members there. 

ti. Well, what member:? of the House? A 
Weil, it was some who were up from that re- 
gion of country who were acquainted with 
Williams. 

(J. Howmanv? A. There were two or three 
— yes, there might have betn as many as 
three. 

Q. Were they individuals not connected with 
either House. A. No, sir, not that I know of. 

Q. Well, what was said at the tiine? A. 
What was done at the time? 

Q. Y'es. A. Well. I think th^t was the time 
tliiit I first learned that he was .going to make an 
application for the writ of habeas corpiis. 

Q Wed, what was s Id? A. Well, I don't re- 
member any distinct thing that was said by any 



of the parties there. Some one told me that 
they had, or were going to get, a writ of habeas 
corpus. 

Q. Well, was that all that was said? A. Oh, 
no, I don't suppo-e it was. There w.is a good 
deal (if vaporing there, I don't remember what. 

Q Well, what did you gentlemen go tliere 
for? A. Well, we went in there to lind out what 
cond'tion Williams was in. I had met with 
him beiore and thought he was a gentlemanly 
man, and I — 

Q Well, what did these other gentlemen, 
Carrigan and iv'cFarland. go In for? A. I don't 
think that both of them were there, perhaps 
neither of them were. 

Q. You s.iy there was a good deil of vapor- 
ing there, what do you mean by that? A. There 
was that r-ort ot tal s, tliat they weie going to 
have them out, and th it the Legisl.iture had 
no authority to an est them. 

(J. Who was it Slid that they were going to 
have them out? A. I could not t(^ll who that was. 

Q. I have not understood that there w re but 
yourself, Carrigan and McFarlaud and some 
others from that iiartof the Stite present, and 
you say that they w^re v poring, and th.at they 
we.e going to hive them out. Well, who was 
it? A. I was s' nd^ ing whether it was this man, 
I forget his name, irom up there— Sinjmerly. I 
was btu'tying whether it was him or not, and 
then I think Mr, Martin had somebody there, 
some frienii Iron his section of the countrv. I 
think there were two or thiee members of the 
Legislature, but I could not, for the lite ot me, 
now tell who they were. They were those men 
though that were friendlv to "the men in cus- 
to Iv, and on that si le of the question. 

Q. They were iriendly to breaking up the 
Legist ture? A. Well, I Avould not use' that 
expression. I would say tliev were in favor of 
tie lea ing a quorum at that time. 

Q How did Mr." riigan happen to be acting 
in i.ehali of Mr. Williams, and to sign the peti- 
tion for a writ of haljeas corpus, ant to swear 
to ii^ A. Wed Id I not know thit I can tell. 
He can tell better than I can about that. 

Q. Was there auythiua: said whi e lie was 
th re that would be done? A.I think the 
thing had been gotten up before. I think the 
arrangements were being made. I do not think 
it was very long after I went down there that 
Judge Gaut spoke. 

Q. This was, as I understand, between the 
morning sos--i"n and the evening session? A. I 
would not say that. 

Q. Well, vvhat is your rec illection, what do 
you say? A. It was after one of the sessions, 
which one it was I am not able to saj', or 
whether we had two ses -ions that day or not. 
It was just afterthe Senate adjourm d. 

Q. Did you see either of thi se men. Williams 
or Martin, aga.nbetoie tne decision of the ha- 
beas corpus case? A. I don't think 1 did. 

Q. That is the only interview you had wth 
them? A. That is the only interview 1 had. I 
talked with Williams a little, and asked him 
if h" wanted any comf rts tliat I coultl send up 
to him, e r any thing of that son,, and that I 
won d send them up if he had not been al- 
ready suppled. 

Q. Was your brother's name mentioned in 
that intei view? A. No, sir; I have no recollec- 
tion of it at all. 

Q. Y^ou say that is the only Interview you had 
with these men. A. That i, all the interview I 
had with them at that time. 

Q. Weil, on any day before the decision of the 
cas ? A. I talked wita Williams alter the de- 
cision of the case. 

Q. Did you tell h m then or at any time 
that 'Toiri would let them go," meai ing your 
brother? A. No, sir, I diiJ not 

Q. When did your biother first t 11 you how 
he was going to dec de the case? A. He never 
told m^^ at all. Without looking at the law 
question, I thought sometimes that he would 



126 



decide it tlie other way, from the expressions he 
had used m rcgarl to thete men. But looking 
at the law, 1 thought he would decide it as he 
did. 

Q. AVhat 1-uv did he speak of. you say, look 
ingat the l;i\\? A. Well, the ciises that were 
discussed belore the Judge there, eading ihe 
provisious of the constitution in regard to the 
power ol the Legislature to issue a w arrant. 

Q. Did xou say that he protested that he wns 
going toiiecide ir. according to the law, without 
reference to parties or consequences? A. Yes, 
sir. 

Q. How many times did he say that? A. I 
don't r collect of his sajing anything about 
his decision only when he came out thi're and 
Avas talking wiih me, and complained about the 
manner in which it was discussed. 

Q. iie said th it Mr. Trimble and.Tudge Brien 
had made strong political speeches? A. Yes, 
sir. 

Q. And had not discussed thelaw? A. Well, 
he did not say that tliev h;id not discussed the 
law, but he said thai "they had m >de political 
speeches and endeavored to drag the political 
issues of ihe country into the decision of the 
question, and that he'was very sorry to see it so. 

Q. Whire did he write hi^ judgment of the 
habeas corpus case, and wh"re dia he write the 
writ 01 atta' hiiient? A. Welul am not able to 
tell, without it was at Judge (want's oflice. I 
lef'. him soon afier the decision was made at the 
court liouse. 

A motion was here made toad'ourn, the hour 
of adjournment having arrived, but the motion 
was lost by a vote of 7 ayes, tj 13 noes. 

Questiim by IMr. Maynard— [A paper was 
here :;elivered to the witness, being the oi)inion 
deliveiedb Judge Fraz^er in ihe habeas cor- 
pus case, and so'iie other papers connect d with 
it all of wliich have bein publ shed] Do you 
know that hanuwriiing? A. I know tht- i-ig- 
natureof the instrument, but I do not know the 
handwriting of the body of the instrument. 

Q. Whose is the handwriting of the signa- 
ture? A. It is my brother's, it I mistake not. 
It is rather badly done, but it loots very much 
like hi*. 

[The witness was here shown one of the other 
papers.] 

ti Do you know this handwriting? A. I 
know tbe'handwritinffor ih'- fignature, but I 
do not know the hanUwriting of the other. 

Q. Whose is ihe handwriting of the signa- 
ture? A. 'I hat is my brother's. 

Q. You don't know the handwri ing of the 
body? A. No. sir. 

[Another papi'r was handed to the witness.] 
A. Well, it i» he samel p esume, though it is 
very badly signtd, but I think the siiinature i- 
his. The body is not. There is something 
here that looks like his handwriting. There 
art- some letter.- in the body of this that look 
like th.y might be iny brother's handwriting. I 
would not say whe.her it is or not. 

Q. The .signature is his. A. Yes, sir. 

(i. You con't know where these papers were 
prepared ands gned? A. No. sir, Idonit. 

Q. You say you were preent when the deci- 
sion was made by your brothei ? A. Yes, sir. 

Q. State whether there were many people 
Tpv sent. A. There were a gnat many persons 
there. 

y. State whether there was any demonstra- 
tion made at the time the decision was an- 
nounce!. A. Well. I don't thin', tnere was any 
demonstration made on that day at all. 'J here 
was quite an audn-nce. but I don't think the 
court room was lull. Whin my bi other took 
his seat on the bench, he said th it thi- was a 
court. 1 remember his stating that, and thai he 
wanted the auiii<Mice to con-ider it so, and that 
it must be considered so, and that he hoped no- 



body would make any demonstration one way 
or the ot'ier. 

Q. What were your views on the proposed ac- 
tion of the Legislature? Were you friend y to 
it or hostile? A. Proposed action of running 
off? 
Q. Yes, sir. A. I was not in favor of it. 
Q. How was it in regard to the constitutional 
amendment? A. Well, I was opposed to it. 

Q. You was oppos' d to the act on of these men 
because jou thought their action was wrong? 
A. Yes, sir. 
(J. You still believe so? A. I still believe so. 
tj. I hat they were acting in violation ol their 
duty? A. I thnujiht thev were actinjir in viola- 
tion of the obligations they had entered into 
as memb -rs of tne Legislature. I w ould state 
th II since the question has been put to me re- 
garding my seeing Willian s again that eve- 
ning, thai my mind is not entirely clear on that 
subject If we had two sessions that da^,l may 
have seen him asain when we cime up here. I 
possibly may have gone in there alter the writ 
was issued, but I would not be positive about it. 
I reint mber the lirst inter > ievv very well, and 
possihly may have gone in there a lerwar^is. I 
watited to make th it explanation so that there 
would be no mistake about it. 

tj. Well, then, it is possible ynit mav have 
made this remark to him about Tom's releas- 
ing him? -V. No, I don't think that is possible. 
I did not know it. 

Q. Well, do you recollect about another mat- 
ter ? One of the Senators at the last session of 
the Senate w'auted you to v te lor some meas- 
ure that he was interested in, and tiiey told tiim 
that yuu might have a ma^xer of your own 
soon that you might want some help in ? A. 
Ve-, sir, I reme mer it; I wouldliketo state it 
though. Well, I don't remember the question 
now, but this gentUman was anxious that I 
should go forthatmeasuie, au' W'a< ijersuading 
me to v>jte lor it, and I said to hiui that I did not 
know I ut th it 1 might go lor it ar y how 1 was 
not fully determined on that question, but that 
I had a measure of imporf;aice which I had a 
good deal of teeling about, that was to come up 
after the Legislature arljourred, that I would 
like very well if he could, alter hearing the tes- 
limony an't the f icts in the ca^e, il he could di- 
vest himself of all party feeling, to determine 
that(iuestion in my brother's favor. I saiii that 
much to him because I felt thit there Avas a 
teeling among some members ol' the Senate to 
mil ke that a party question ; but I did lOt ask 
him direct y. I thini; the gentleman will state 
hiuiself ih'it I wanted him to hear all the testi- 
mony in the case, and det-rmine the question 
without any reference to party eeling— outside 
ot p itty a'togeiher. I feel it due to myself to 
state that much. There was no bargain b'tween 
us, nor was there anything said that I feel w^as 
in the character of a bribe. It was only an iUr 
tervievv between us that was of a friendly char- 
acter, and he was talking about his measure, 
and I t dked about it just in that way. 

Q. You say you suspected some of the mem- 
beis in the Senate? A. I feared that there 
was a feeling in the Senate that would inllu- 
ence their minds insensibly to lean over in 
favor of 'heir own side of thi.' question, and I 
have always tried whenever I -poke to any of 
the Senators to explain it in ihat way. 1 al- 
ways asked them to try ;ind diV' st thi mselvesof 
these feelings and hear the case and the evi- 
dence, then mtermiue the i|U siiou upon the 
evi ence without party feeling-. I think I 
SDoke to Mr. feenter just in the same way iu 
confidence, and pro uably some other members 
of ihe Senate 

Re direct-Examination. — Question by Mr. 
East — Who is the Senator alluded to? A. I 
sujipose It was Mr. Hall. 

y Did you vote for this Senator's measure? 
A. 1 don't think I did, lam not sure about it. 



127 



My impression is that it was the indemnity 
qut'sti' n. 

Q. W hnt did ]Srr. Hall say to you in replyV 
A. Mr Hall s:ii<l to me in reply that he would 
do so; tliat he had no feeling npon ihe subiect; 
that, he intended to he ir tlie praof iind the evi- 
dence upon tliecase, and determine tlie ques- 
tion jut accoriivig to the proof in th" case, and 
that "he would enueavor to divest himself of all 
party feelings. 

The Senate then adjourned. 



THUBSDAY, MAY 23d, 1867. 

The Senate met at the usual hour, nineteen 
members present, and the Prcsidenflu the 
chair 

Senator McKinuey offered a motion to sus- 
pend the rules so that the court might meet 
atSA. M, and ailjourn at 5 f. m. The motion 
was lost by a vote of 4 ayes to 15 noes. 

TESTIMONY OF JUDGE M. M. BRIEN. 

Jiulge M. M. Brien was next called as a wit- 
ness for the defense, and sworn. 

Question by Mr. East— Judge Brien, state to 
the court whither you are acquaintt'd with 
Judge ITrazier, how luig you have known him, 
and ii yo\i know ttlec^rcum^tances under which 
he obtaine i or accepted his commission as 
Judg ? A. Yes, sir, I know Judge Frazier 
very well now. I have known him pertonally, 
I suppose, for some ten or lifteen years. I 
knew tdm from reputation before 1 knew him 
personally, iii reference to his commission, I 
suppose 1 am cliargeable for that deed. I so- 
licited the government to commissiOQ him. It 
was at my Solicit iiion that he got the commis- 
sion, and 1 uived him to acceiit it H ■ was 
verv reiuctunt, and it w.ts sevei'al days before 
he would consent to accept his comiuission. I 
believe I qualifle 1 him^ upon his commission at 
the time be did accept. 

Q. You had been Judg ■ of that court your- 
S(li, I b-iiive? A. Yes. sir, I had been Juilge ot 
the Criminal Court At the request of sevt-ral 
members of the bar I resigned that, to accept the 
post'On cf Circut Judge. 

Q. Do you hold that position at this time? A. 
Yes, »ir;'l am Judge now, but 1 don't h'>id un- 
der the same coinmissi >n now that 1 did then. 
I resigned,and aftei ward I was le-commissioned 
ag. in. 

Q By whom were you first appointed, and 
who gave you the ^ubsequent commission? A. 
I was lirst appoiijtedby Governor Johnson. 

Q. V\ hut wa-~ the date of that cf!mini?sion? A. 
I believe it w<is in 1S63, as Criminal Judge. 

y. VV hat was the date ot your last commis- 
sion ? A. The last commission was mlStiT. 'the 
one before it was in 1S66 1 have le n commis- 
sioned twice by Gov. Brownlow and twice by 
G(jV. Johnson, as Criminal Judge, and as Cir- 
cuit Judge by «iov Johnson. 

Q. Juifge lirien, if you are acquainted with 
the character of Judge Frazier, of your own 
knowlidge, as a man, acitizen and aJudge, wi 1 
you plea>e state it to the court ? A. I thiun 1 
know w"! nt itta-es to constitute general char- 
acter. From my knowledge of general chat ac- 
tor, 1 think 1 Unow Judge Fraziei's '-haracler 
as a man, as a J!id.Ae and as a citizen. 

Q. Well, jjleuse ^tat,■ which it is? A. My im- 
pression is that his character is pure and un- 
spotted. I don't think any man in the State of 
Tenntssee h s got any better character, than 
Judge Fiazier. I think he is a pure, uncor 
ruiitible J udgo. He may err, like a good many 
of us do, but I am satistied it would be an error 
in judgment, and nothing else. I have been in- 
timate with him since he has been here. I 
knew him over at Pikeville. I have been more 



intimate with him since he has been residing ia 
I his city. I have freipiently conversed Ivith 
lawyers respecting biin. I was ;it his house 
and .stayed with him at I'ikeville. I regard him 
a- a pure man. 

Judge Brien — Do you know anything further 
in regard to tlie trial of the habi as corpus, or 
any othrr fact connected with this matter? A. 
Xo, sir, I Wi.s not here during the trial I think 
I was somewhere in the mountains, probably 
holding court for some brother Judge; at lea^t, 
I was not here when that cause was tried. 

Q. You were not here wheu the writ was 
tak' n out? A. Xo, sir. 

Q. Ofl" holding court? A Yes, sir. 

ti. Did you have any conversation at that 
time witii judge Frazier? A.Irememher having 
a jocular conversation with J udi;e Fiazier af- 
ter the trial was over. I don't know whether 
it would be proner to state ihat, gentlemen. 

Q, Were you not bidding court at franklin 
in July, 1S6H? A. Well, it mav be it was at 
Franklin. I remember very well that was the 
reason J was not hire. I was think ng. may 
be, I was at DeKalb. I don't remember the 
tme. 

Q. I remember to have seen you in July, 
18i6, at Fra' klin myselt personally? A. Yes, 
sir, tint may be it. 

Q. Have you been in Judge Frazier's court, 
and do you know his manner of pr ji'eeding on 
the liench? A. Yes— well, I am somewhat ac- 
quainted with it. I have been in h;s court fre- 
quently. 

U,oss-£'a}ammatioti — (Juestion by Mr. Trim- 
ble— Were yon here during the extia session of 
July, 1866; A. Part of the time I wa-. 

Q. What time? A. I don't remember. I re- 
member this, that I was very rarely about 
! the Capitol at all. 

ti. AVell, do you know the tone and tera- 
Ijer of the sentiment of Nashville toward the 
L.egi-lature at that time? A. Yes, sir. 

Q. What was it? vv as it friendly or unfriend- 
ly lo the J.egislature? A. Well, tliC tone was 
uniriend y. 

tj AV'as there more than an ordinary exhiui- 
tioii of feeling ou the subject? A. Yes. sir. 

ii. Did you see any indications that prob- 
ably threatened an outbreak if General Thomas 
haii n 't been here? A. Well, I do.i-t know tliac. 

Q. Did it seem to oe going m that direction? 
A. 1 don't know how to answer that. I know 
there were apprehension^ on the .-ubjeot.. I 
c;in tell better by what I considered myself. I 
raiher looked for it myself. 

ti. Well, was not the Legislature openly de- 
nounced as a bogus Le^rislature? A. I think I 
heard a good deal said against the Legisla- 
ture. 

Q. Was not that enconrgel, too, bv gen- 
tlemen in high places? A. Well, the most! heard 
speal: of t were of that ctiavauter. 

Q. What sa\ ed the cty from an outbreak? A 
I cannot answer that, I "do r,ot know. 

Q. How long after that was it tsnat the massa- 
cre at X^ew Orleans occuried? A. I don't know 
that. 

ti. W^ell, it was not long, was it? A. No, sir, it 
was si niewhe e along about that ti'ne. 

Q. Well, in that state of the public mind 
where (lolitical questions are at issu,- and judges 
are required to perform a judicial act, what 
should be the properstatus and animus ot the 
Judge? A. I don't know that exactly. 

Q. Doesn't he have to rise wi h the occasion? 
A. I think he ought to chicide regardless of con- 
seqiit ncps. 

(j Does it rot require a high degree of cour- 
age to decide judicial questi ms iiniiartially 
against the current? A. Sometimes a Judge 
dn-liUos very much to have to decide a question, 
when he is satisfied the ijeople are against his 
d cision, but I don't think that ougiit to con- 
trol him. 

Q. But don't it require high moral courage 



128 



to resist the pressure of a comiii»inity? A, 
"Well r have been at court several times when 
I saw that the leeling was decidedly again^it 
me. 

Q.I am not talking about that.butif you were 
called upon lo do a judicial act at such a time, 
would you not reg.trd it as a very grave occa- 
sion and brace yourseli? A. Yes. sir, 1 h'^X^ 
seen such occasions as these presented when it 
required -ome nerve 'or a man to decide it. 
But, if a niAn is determined t > discharge his 
duty fearies ly, he has no difficulty in deciding 
these qu'-s-tions I do not mi-an to say by tha' 
thata Judge is always right, but be ought to 
decide the question a certain way if he thinks 
that way is right. ^ ^ 

Q. What are the special traits of character ot 
Judge Frazier? A. In the the first place I 
think he is a moral, upusht, intelligent gentle- 
man, lie is.a go d lawyer. I have always re 
garded him so, and as an houe:-t man; that is 
his reputation ^ . ■ , 

Q. Doe* he discharge his duties as Criminal 
Judge reasonably well and creditably? A. 1 
think so, sir. , , _ 

Q And deports himself in life reasonablyi' 
A. Yes, sir. 

Q. Do these qualities constitute in your court 
an ex u-e lor a high crime and misdemeanor? 
A.. No, sir. . _,, 

Q. What effect would they have? A. They 
would be a mitigaton of the offense. 

Q. Would iv not be au aggrav.ition of it? A. 
Ko, sir, I think not. 

Q. In the discharge of a judicial act the 
higher the man the wor^e the eximple. A. 
Yes. sir. it might be that way if you could con- 
strue u into a corrupt commission ot the ol- 
fense. , ^ , 

Q. But suppose it was willful and wrongiul, 
would not 1 lie higher the character of the man 
■who committed it make it. the crime, greater? 
A. Yes, sir. if it was willful and wrongiul it 
would be regarded as an ofl">;nse 

Q. Well, is Judge Frazier a man of firmness.'' 
A. Well, I think so. ^ ^u- , 

Q. Is he a timid man? A. I do not think 
that. „ , ^ 

Q. Is he not an apprehensive man? A. 1 can- 
not answer as to that. 1 have found him very 
firm. ., , 

Q. Well, vousaid that in the ordinary conduct 
of his (ourt he was a good judge, and a good 
man. I will ask abjut iliese special traits. 
A. I don't know that he is a timid man. I think 
he is a prudent, conscientious man. I have 
always regarded him as a prudent, con- 
scieniious mm. 

Q. Well, when that class of men are wrong, 
they commit the greate >t of errors, don't they? 
A. I could not answer that. 

Q. Wei . in different men there are different 
degrees of resis am;e to popular passion, are 
there i.ot? A. Yes. sir, certa nly. 

Q. Was Judge Frazier a man that would re- 
sist a torr> nt oi passion that was swelling and 
ro.linj over the country? A. No, sir, I don't 
think I could sav that he would do that. 

Q. Well, if the' e is any occision in life tha t 
requires firmness and high moral courage, isn't 
it th'tt of a J iidge und r such circumstances? 
A. Well, sir, I shou.d think it ought to be that 
■way. 

Q. Take, for instance, a case where public 
feeling is rising, does it not behoove a judge 
above a' I men t > rise above th ■ pas-ions of the 
day and to act with heroic courage? A. Yes, 
sir, a ju<U'e Ireipuutly has to guard ag.iinst 
such a Slate of things. i ,, , , ^i, 

Q. Was not it his duty to try and hold the 
scales of justice even? A. Yes, sir, as 1 regard 
it. 

Q. Do you think, Judare Brien, that if the sen- 
timent hud been running the other way, Judge 
Frazier would have i-sutd that writ? 
Mr. Kwing— We object. 



Answer— My impression is, that if .Judge 
Frazier had thouglit the writ right he would 
have issued it under any circum>tauces, and if 
he had thought it M'roiig I do not think he 
would have done it. At the same time, if it 
had been presented to me I am satisfied that I 
could not have granted the writ. 

Q. Why? A. I do not think it was right. 

Q. Was it rot a plain, open, palpable case, 
involving the rights and privileges of the iJouse 
of Representatives, as you understand the law? 

Mr. Ewiug— I object." 

The vote was then taken by the court, and it 
was decided that the question should be an- 
swered, ayes 10, noes 7. 

A. That was my opinion. In the expression 
ot that O(iinioii, it may be proper for me to say 
that I wa- against that loMng business and 
against all tlie frauds to break up the Legisla- 
ture, and thai might have had some influence 
upon my ju igmenc. I regarded it as a wiong, 
and do yet. 

Q. When did you return from Franklin? A. 
I do not remember, Mr. Trimble. The court 
generally lasts there two weeks. I came some- 
times once or twice a week, and sometinu s only 
once a week. I never have stayed the whole 
two weeks o.it. 

Q. Was It a matter of public notoriety or 
knowledge that there was an attempt to pre- 
vent a meeting of the House of Ke resenta- 
tives with a view to prevent the adoption of the 
constitutional amendment? A. Well, I tlijught 
so. 

Q. Was not it a matter of public notoriety 
and knowledge here tnat the President of the 
United Suites had sent to Con gre-s a protest 
ngiinst the amendment offered by it to the 
Stites? A. Wei, I don't remember exactly 
how that was. There was tomething relating 
to it. 

Q. Then he sent a paper there, dissenting 
from it? A. There was something of that sort, 
but I do not remember it. 1 tried to keen out of 
politics as mu( h as I could. I was on the bench, 
and did not think it a proper place for a Judge 
to he talking on political questions. I avoided 
it as inueh as I could, although I was very firm 
in my opinions. 

Q. Were not the leading Conservative men 
opposed to the adoption of that amendment? A. 
The rebels were all opposed to it. 

Q. Well, I asiv you if the leading Conserva'ivfe 
men were not, or do you class tnem as rebels? 
A. Ine^'er thought there was a great d al of 
difference between the Conservatives and the 
rebels I cla-s them all about the same way. 

Q. Well, was not the action of the House of 
Representatives, as far as it came under your 
knowledge and us far as you have knowleilge 
of it, moderate i<nd forbearing? A. Hell, I 
have not examined that. I did not see any- 
thing rash in the (•ouduct of the Legislature. 

Q. Well, they did not order the arrest of 
Judge Frazier and others conspiring to break 
up the Legislatuit? A. 1 don't know that they 
did. 

Q. In point cf fact you know that they did 
not? A. If they did I never heard of it. 

tj. Would it not have struck you as an exer- 
cise of more than usual poM'er for the House of 
Represontaiives to have vindicated its rights 
and privileges by putting a warrant in the 
hands of the Semeant-at Arms for Jiulge 
Frazier? A. Well my answer to a previous 
question would in substance answir that. I 
thought it was wrong. 

tj. Well, in pursuing this course peaceably 
and quietly, wasn't there great moderation 
•and forbearance on the part of the i louse of 
Representatives? A. Well, tha. is a matter of 
opinion altog. ther. 
tj. Well, I ask you yours? 
Mr. Fwing— 1 object to that. He asks the 
witness for an opi: ion. 



129 



Question by Mr. Trimble— Do you think that 
Judge Hrazier is a man of honesty or discrim- 
ination of niinif? A. Yes, sir, Juiige Frazitr is 
a man of flue mind. 

Q. A mail o understanding? A. Yes. sir, a 
temperate, ^ober, uprigtit man; fo I always re- 
garded iiim a- much as any man I know. 

ii Do > ou k'Ov* whether it was meditatei at 
that time to overthrow the presi't existing 
State (ioveinnient? A. No, sir; there was a 
good de.il of talk, and it Avas an opinion of 
mine that thi re were surh tilings in agitaiion 
Whether it was a determination or no , 1 do not 
know. 

Q. What quieted the agitation of the public 
mind? A. I don't know that 1 could auswtr 
that. 

Q. Well, wasn't it the elections in the fall? A. 
Well. Iiim' know. sir. I don't know that it 
is entirely qu'ete yet 

Re-direct-Examination. — Question bv Mr. 
EasL — Juiige 1 nen, you have been a-ked in re- 
gard to the character oi mind of Judge Fra- 
zier, and his morals. < in a question of the 
nicely balanceit powers of the State or Nation- 
al Government, or a question between de- 
partments, judicial and executive or executive 
and legislative, do you know a man or a juiige 
to whom such a ques' ion could be so imnar- 
tially referred a- to Judi^e Frazier? A. I have 
every c iniidence in bim I have heard him 
deliver some opinions that I thought would he 
credit ible to any judge. 

Q. You uerea k d m regard to your own 
opinion of tht issuan<'e of the writ of habea- 
corpus. Wi u d you have issued i f A. I don't 
know that I would, knowine the facts. 

Q What ii the i.niform law on the subject? 
A. Well, it is left to the discretion of the judge 
himself to make out the case. If he thinks 
that the writ ou.'fht t'i i-sue, he ught to isue 
it; if not, nut, and lo assign his rcxsous for do- 
ing it 

Q. If you had brlieved otherwise than you 
say vounow b lieve, would you have issued it?' 
A If I hail believed the wrir. should hive been 
issuetl. 1 should ha e issued it. 

Q. Don't it require more courasre tt issue it 
against the impeaci ing powi r of tie State thim 
against ptiblic opinion and clamor? A. W. 11, 
there never was an application pr. sent' d to me. 
This i-- the first case ot which I have anv 
knowledge in thi- county. Some case-» are re- 
2)orted in books, but I have no knowledge oi 
any excitement ot th it sort. 

Q. Does It req lire an ■ qually co^l man of 
courage to issue it ag tinst the I,<gi-ilatuie as 
against the pnbli', opinion? A. I don't Uiink a 
judge should look at anything of that kind. 

Q Aie not judges sometimes clear on decis- 
ions which oitiers ihink ouiiht to be reverse;? 
A. Well, sometimes thev are not so clear. 

Q In your o^vn oise. take the Bank of Ten- 
nessee? A. Well, I have delivered opinions 
and decided que-tions that I w»uld have some 
doubt about, butthaD was my best; opinion, and 
I have ueciiied siuie questions when 1 thought 
other couits would have dec ded them differ-! 
ertly, but still that would not change my opin- 
ion in refeieni-e o tiiem. 

Q. I sup|j se your opinion on the mmdarrns 
in the case of the Bunk \-i Tennessee was very 
clear in j'onr own mind? A. Yes, sir, and I 
amequall as clear tuat I am right now 
as I was then. 

Q. Although the Siipreme Co irt reversed it? 
A. Yes, sir, but I most certainlj' would defer 
to the dei'i ion of the Supreme C'ouit. 

Q. But I reier to these things to show that, 
however ciea; a man's opinion may be to him- 
self, that stdl the revising power Wduiil think 
differently? A. Yes, the revis.ng power might 
think differently. 

Q. And while you mieht have had one opinion 
of the habeas corpus <ase another judge might 
have had a different opinion ? a. Yes, sir. 



Q. A different opinion between judges and 
lawyers i> no cause for a ci iminal "inte t? A. 
No. sir. I remi mi er an instance n"W in which 
I charged a grand jury, at Murfreesboro. and 
when Judge Krazier went there he charged to 
the rever.-eof th t, and he and I had a confer- 
ence on that point an f came to the conclusion 
that he wns right ai d thai I wa- wroiifr 

Q. Y'Uftonot thnk thni either of you weie 
very corrupt in that though ? A No,"sir. 

Q. i^lthough ihe con;'qiienc«s might have 
been injurious to one citizen or more ? A. Yes, 
sir. 

TESTI.MONY OF FRANCIS B. FOGG. 

Francis B. Fogg was next called as a witness 
on the jiart oi the defense. 

Question by Mr. Kast— Vi ill you statg fo the 
court your n^nie and resid nee? A. irancisB. 
I'ogg of ^a hville. 

Q State whe her or not you are acquainted 
with the g' nC' al character as a ci izen and s a 
jndgeof Judge Frazi. r, and if so, i.le;ise state 
what it is? A. I have known Judge Frazu r ever 
since he cam" to Nashville. 1 saw bim im- 
mediately after his ar ival here, when he was 
appointed ju ige; and l have known him ever 
sin<e. I have had conversaiions with him 
very frequenth , and h.ve heard bim siioler, of 
by others. I supix)se I know hi- general char- 
acter as a man of honet purpose, and of kind, 
honest manner, •.>iv\ as a man of excellent sense, 
.-o far a- I kuow, i i every respect his moral 
character is of the highest gra e. I saw him a 
good deal when he fl i-t i ame here. I he ieve 
that he stayed in the same office or in an office 
adjoining that in whii h I stayed in the iiav 
time and I hid very frequent convers tions 
with him. Our conversations were^fagene- 
rd natuie— general y on 1 gulquistio s I do 
not know whether we discus^ed nuich about 
pol'tic , for he and I wer ; of the same op nion 
about that, : nd cf cour e we riid not dispute, 
for he was a very strung Union man in his feel- 
ings and opin on-. 

Q. What is his general character as a judge?- 
A. Well. sir. I never pi a ic d in the court, ancl 
1 don't know th a I ever heaid anv decision 
from tbe bench delivered by Judge Fraz er, but 
my opinion would be formed upon the testimo- 
n of others I have always heaid him spoken 
of very highly as a good, hone.-tjudire, a wor- 
thy man. a m ,u that understood well the crini- 
indlaw ot the country; and I do not know 
thai I ever heard. an> tlii.g to ih ; contrary un- 
til que tions aruse oi the criaracter now before 
the country. 'nvoMiig some po it'Cal coi s.der- 
tions. 1 should suppi;se, from mv conversatioji 
with him, that he was a very good judge that 
he understood the laws of evinence ;tnd the 
ci iminal law Vttiy well, and that he adnii- is- 
tere i them wifh great honesty and impartialitv 
I could not say particularly, in rega.d lo tlie 
ctiaracleroi his opinions, for I never practiced 
in that court. 

TESTIMONY OF SILA^ F. ALLEN. 

Si as F. Allen was then called and sworn. 

Question by Mr E>sf— Captain Allen, will 
you please state your name, re-idonce ^n<\ oc- 
cupwtion? A. My name is Silas F. Allen, my 
residence is Na.shvil.e, my occupation a law- 
yer. 

Q. How long have j-ou been a resident of 
Nashville. La, it. Allen? A. I. have been a rcsi- 
detit 01 Nashville sinfe the lirstofMarch 1S64 

Q. Were you an oineer in the United States 
army? A. \'es, sir 

Q. Have - ou a knowledge of the character of 
Judge Frazier, as a man, a citizen and aiud°-e? 
A. I never have seen very mncli of' Judge 
Frazier, except ill his court I have pr.icticed 
con-iderable before him while hewasjudo-e 
As to his character as a citizen, I^eoiUd uotsky 



130 



anything' scarcely of my own knowledge, be- 
cause that was about all 1 had to do wi'h him. 
I practiced in his courts. But I know his repu- 
tation veiy well. 

Q, Well, stite h's charterer from what you 
know, and tr m what ithers said"? A. Well, 1 
should say he bore «s high a character as any 
man co i d b^ar. 

Q. Wha' has benii your personal observation 
as a lawyer piaciicmg in his c unV a. My 
opinion has always be u that lie has been a very 
tonscientiou , i m pa ■ tial judge 

Q. A man of integrity? A. Yes, sir, of strict 
integrity. 

Q Is he a patient, firm man? A He is a very 
care'ul patent man and looLs into ihe truth 
of the ca e. I have no reason fo itOHbtUis flrm- 
ntss that I know of. I do rot know that I ever 
saw it ?)U til the test pai ticul.xrly. My impres 
sion is that heh^sahvay- been a vt ry pains- 
taking man, as a judg--. tod cide cases before 
him arcoiding to right and to law. 

Q. A. con^clentiou- man? A. I should say, a 
good deal more th n ord nary. 

Q. A good deal more fiau oidinary? A. Yes, 
sir, th ii is my iuipr ssion. 

y. Do \ou th nk that Judge F az'er would 
have the flrnniess todeclar-^in opinion which 
he couscientiou.sly b-licv. d, regardless of conse- 
quences to nimseif personally? A I tbnlf, sir, 
that if Judge Frazier was sat sfled that any 
particular cou seof < onduct was right, he would 

fo as far ia that direction as any uiau that I 
now of. 

Q. His ii'eas of right as a judge would be 
what he egardeit a the law? A. I think so. 
I have seen a gieat many more obstiniUe men 
ana foo.-hHr^iy m n th n Judge Fr zier. But 
I think whe e his coi science 1. d him he would 
go as far as any maniu what he Ije level to be 
right. 

Q. t'aptain Alhn, did yon ever havR a con- 
versa iOii with Judge Fruzier m reg.ird to this 
matter previous to the impeachment? A I 
had a couve satiou v\iih Judge t" raziir in my 
office sometime list f.di, I think it was, or 
somewhere l.iie in til" ^ummc■r I r early in the 
fall before the matter ot impeachm nt h^id 
"b en suggested, at least to my knowledge 
Judge Fiaziei- came ti) mv otli e. 

Question by J>ir. Tnmble— What time was 
that? A I think ic was sometime in the latt.;r 
part of July. 

Mr. Triui' le— It was nfter the tria', and what 
was alter the tr;ai coiddnot bn cunsidei'ed an 
©ffens . 

Mr. East— We will not insist upon it if you 
object. 

Mr. Trimble— It would be competent for the 
State to pr ve any adm ssions or coufe sio s, 
but no competent tor yoi. 

Mr. Kast — I housht'the ru'e was relixed. 

Mr Triin!'ie—Bu you have been enforcing it 
onceia a whi e yourself. 

TESTIMONY OF T. J. WILSON. 

T. J. Wdson was next called and sworn. 

Question tiy — ; Mr Wilson, state 

your a e, re irlcnce and occupaton. A. My 
name sT J. Wilson. I live in Nashville, and 
am a merchant in this city. 

Q,. flow liiig have you re-i'ed in Nashv lie 
and where did ymi come from when y<iu came 
here? A I (^anie from Ble soe county, 'I'en- 
iiessee, it March lbiG4 

•Q. How near did you live to Judge Thomas 
K. Fri^ier, oid how b ngV A. 1 iivc>i U' xt 
Beigbbar to him, sir, lor abuut fifteen or sixteen 
years. 

Q. In the same town? A. We both lived out 
Of town, bu; our p aces joined. 

Q. You bav.- known bun for fifteen or twenty 
years? A. Yes, sir, sue 1849. 

Q. I su pose he canif here about the same 
tinii^ you did? A. YlS, sir, but his lamily tlidn't 
come until after. 



Q. What is Judge Frazier's character, or 
what was his chava ter as a man and as a ci i. 
zen? A. He was tteneraly looked upon as one 
of the most correct h iiest. impartial men in 
that county, so much to that men oi either 
parry, whatever iheu- pol tical I'r religious 
opinions were, Avcie willing to 'aKe his ad- 
vice and let his word deoid % I hav kuown 
iust >nces where men of almost my party were 
willinu to let his word decide for 'h m 

Q Wen- you a quainted with Judge Frazier 
about the time of the war? A. Yes, sir, we were 
living there as neighn.irs. 

Q. What part did he take in it? A. He took a 
decideil stimd for the a-'-v rnment. >'nd was al- 
ways considered a tirin, consistent Un on man. 
Q. So undei-s oi.d? A. So under tood by 
everybody. I believe sir. 

Q. Do you know wheih'^r he did Huythii-ig to 
manitest hisopinioi's un that suhject? a. Well, 
in what way, Mr. Evst? 

Q. Did he make any spe ches, or declare his 
opinion? A. Y^s, >ir, d rinp the canv .ss of 
1801, in February, he was a randidate for the 
convention and anvas ed the distr ct At that 
time I was a very strong ( nion man myself, 
and we stood togett'er n that question. 

Q. I will -sk you if Judge Krazicr was not a 
leading m in on tha- subject in hi.-? part of th« 
country? K. He was. sir. 

Q. The rallying poinc of other men? A. Yes, 
sir. 

Q Do you know the circumstances un- 
der which he mov- d to Mid'ile Ten- 
nesse, or what brought h m here? 
A. At the time I left him he was at 
McMinnville. He had leit home on ac> ount of 
guerrillas , rowbng ar uud t'ure ilien 'hroiigh 
th • country. There were a good mnny soldiers 
banded together in he moi ntains hey had 
comedown in th valhy and stopped at my 
house, and at other houses in tnwn and at 
Jidge Frazier's. 'I h y bad r bbed hm and 
pei haiis threatened hi'm. and he h id left there 
and gone to McMinnvil e, where I found him 
on my way to Nashvilie. 

Q. Were they rebels? ^.Yes, ir, nbel;— 
Champ Feigus'on, aner and i is ni'-n 

Q. Did the. make 'udge fraz era special ob- 
ject of persecuti n? A. I hii k they d d, sir 
There were some other- there th t were 
the otijects of their lepr.datio s, tin I think he 
was the main on;- that suffered at ikevi le. 
Q. Do you know whether their th ea s extend- 
ed t > ai-lual p. rsonal danger, or t . trying to 
kill him? A. I can't sy hw th--t is; but I 
understanl from o hers th.it he had been, 
threatened very strongly, I believe I advised 
him to leave theie. 

Q. Was there a pistol presented at his head? 
A. 1 cannot say, but that IS what I hea d from 
others. 

Q. At his wife? A. I cannot say about 
that. 

Q. Was he d:iven from his home 'o the woods, 
and obliged to reman there? it i k hat was 
the uiiderstaniliuK, li at he wen out, and I 
th nk that he ieft ior McMuinville irurn the 
wiods s mewhere. I do ttliinU that he left 
for McMinnville f'oni his o ■• n hone 'tall. I 
tlink hf went across the mounta n to McMinn- 
vil e fi'oni some p >ini in the neighbor ood. 

Q. Well, that was theocca^i n o h s break- 
ing up his 1 esidenci? \ v e , sir. 

Q He came :ihea of his family, I believe, to 
Miiidle Tennes-ee? .\. "i cs, sir. e c.Hme to 
.McMinnville, and was th r ■ when 1 pa-sed 
thniugh with my family, and he came on to 
Na>hvilie with u . 

Q. He lei t his house aid home, an every- 
thing in East lennessee, didn't h< ? A. Yes, 
sir. He sent for his family; perhaps he -went 
home a'ter them. J don't know ab ui that, but 
his family cam;- aft' r ■•• a ds 

Cross .Ea'amination.—QneMon by M ' . Trim- 
ble— Do you know whether Judge Frazier was 



131 



ever arrested by the rebels or p-upriillas? A. 
Well, except that time I know nothiiiK about it 

Q. Except whai time? A. Except the time 
that Carter's men robbed him. 1 don't know 
■Whether ihe\ had him under arrest or not. 

Q. 1)0 vou knew wheth.r the. required him 
to give his parole or take an oath, or anjthing 
of that sort? A. 1 do not know. 

Q. I id they require judues in East T* nnessee 
to take the oath o allegiance? A. Idon'tknow 
of my own knowledge. 

TESTIMONY OF P. M. HOODENPYLE. 

Question by Mr. Eas.t— Will you state your 
name and residence? A. P. M. Jbioodenp>le is 
my naiue 

Q Wht re do you live, Mr. Hoodenpyle ? A. I 
live )i Hilt' erfurd ciunty. 

Q. How long did you live there ? A. Three 
years. 

Q. Where did you come from when you went 
there ? A. I came ironi Bled^oe county. 

Q. Were \ou a neighbor of Judgv Frazier's, 
and if so, how iouic ha^i \ou known him? A. 
About twenty-five years perhaps lonjicr 

Q. Wa not Judge frazier's reput:ition up 
there atrong his neighbors and acquainiance 
that of iutegrit\ . of h nesty aud courage ? \ 
I never hejinl anyth ng against hi u in my life 
I tho;iglit he was an hcnoralile man. 

Q Whit was his position toward he govern- 
ment ? A.. v\ ell, sir, be deiended the go ern 
ment always I lived close to him und was n 
his company a great de I, and I thought he was 
a friend oi the gcvernmeiit. 

Q. Dili you see him frequently during 1861 
and 1862," and subsequent to ih t tiu;e? A. 
"Ycl-, sir, I saw him oiten, sometimes every 
day. 

Q. Was t'lere any man in Ble 'soe county of 
more |.r«jminence in 1861? A. I do not Know 
of any. I think ne was > ne of tiie m st promi- 
nent men in that i oiiiity. 

Q. Was thtre any man who was more free to 
declare hi> opinioi.s? A. Well, sir, 1 ihiuh, 
not. 

Q. Do yon know his ex-'ression of Of)inion 
and his char.i<ter ibr loyalty? A. Well, sir, he 
always seemed to exp.ess his feelings very 
freely. 

Q. AV 11 did these expressions of opinion put 
him in danger f om f^uerri las? A. Weil, -ir, 
I suppose they did The guerrillas came 
through there and singled him out, and 
inquired lor h m. I u' derstoou that was be- 
cause he w.iS a Union man. 

Q. Who were they? A. It was said th t they 
■were a bana h.a ea by (Jhamp Ferguson, ami 
Hughes, and 1 arier. 

Q. Dill y u sei- them, or do you know what 
they di'' to him and bis family? A. W ell, sir, 1 
do not know all ot them, lor when they came 
in I stayi.ii pr ttv close at lOine 

Q. Staye 1 close .thome? A. Yes. sir, but 1 
tirnlers ood that they went up and robbcl him 
of all t .e m ney he nan. The main ■ orapany 
left tow n, aini robned him of all th.; moae> h.-, 
had. Tmi II aiu company lelt the timnand 
•went on, biitiheie wire two or three men that 
lurked about and v\ eut over to t ol. liiiige i r's 
anil ca e buck, and in that lime I leanedtbat 
they had robbed Mr. Fruzfr and my brother- 
in-law up t^iere. We were tanding in the 
porch when we saw f rei men ride into t 'Wn. 
They caniL' right lip in front of Judge Frazier's 
house. i;e lived a litt e way irom lown. une 
of them sta><don his horse and iheothir wt-nt 
up to Judge Frazier. • ne gut off with his pis- 
tol in his hand and walked into the house. Mr 
Frazier saw him and suppisd he w s a'ter 
him, and he ttep(..ed behiud the housf. The 
man iiiq.iiitd tor the man of the h 'Use, Mr. 
Frazier. Mrs. trazier told him that he hid 
gone off soniewh. re. He told her to call him 
back, teat he waited to see him She didn t 
do it instantly, and he told her that he didn't 



want to hurt him. Then she called him and 
he came back , and nboutthe time he came in 
the man told him he wanted his money. But I 
su ppo e I am a litt e too fast. Thej took his 
money flrst ard g:ive a pait of it back to him; 
1 don't remember how much, and the man smd 
he wanted that much money Mr Frazier 
t"ld Mrs Frazier to get it, which she did. I 
suppose thev came out. and my brother-in-law 
was sittii'g there riaht by me, ard he demand- 
ed bis moi ey I suppose hf got abouf forty 
dollars from him 1 expected my turn would 
come nexi, as I was there, but in the mean- 
time Mr. Frazier H lid Airs. F azier came out and 
we were all t"gether,and Isupp'Se he overlook- 
ed me; I don't know how I otnerwise would have 
escaped. Inihec ursoif the cotiver^ati n he 
was cursing ti e Union men, and Mr. Hrazier 
tohl him he h.>.d always been a Union man, and 
then he jumped oil his horse and said hi; was a 
highway toljlit-r, and he didn't cine Mho knew 
it, and rode (ff. He observed at the t me that 
he was going to kdi all these d— d Union me"^ in 
the conn r.. Mr. Frazier went to my at er's, 
and stayed all night I do, 't know wher^ he 
w nfc next day; he was absent, tbouHh. 1 lived 
near him in J'ikeville. almost the n xt iloor, 
w.tbii! a hundred yurds of him Judge Frazier 
came down in this country somewhere. 

Q. How long afte' that was it betore his fami- 
ly movea? A. Well, I oiil ■ not st te the pre- 
cise time, sir. It was some time alter that. 

Q I believe you say you came down with 
himV A Y< s, sir. but'l don't remem er the 
date My pinion is that it wa* i Fbruaryor 
March ;perbap- he came in Match. 

Q 186iorl86i? A. 18(i4. I reckon. 

Q. He w:is entirely broketi up there, wasn't 
he? A. \ es, sir, his stock was all ta' en and he 
ciime • ff a'ld brought but very little of his 
plundi r. lie was ;<fraid to st.iy to dispose of it. 
He justpiike up all he could get into three 
small WHgons and came off. H salt that he 
didn't like to r s^ it, th^t he would rather lose 
his I roperiy than his lif-', and he came to Kuth- 
eriordcouny and siayed there. 

Q ^ ere you Ids neighbor there? A. Yes, 
sir. Then he came into this county, near the 
asylu . 

CJ. Did you eve"" hear Judge Frazier's integ- 
rity or purity questioned either as a man in 
private, life, or s a citizen toward the govern- 
nien', or as a judge presiding on tv e bt-ijch? A. 
No, sir I don't know tUBt I ever hiive 

Q Byanybodj? A. Hot by anybody at aU, 
sir. 

Q. Wht was his character in RutherfO'd as 
a judge? A. It, was very pood I heard a good 
many -eople express themselves to the e ei'.t 
tnat they liked him as a jud^e I never heard 
an) obje' tion, ex<ep ihatth y thoigbthewns 
too ii diligent to the lawyers, ad Ictth m cavil 
t lO much. That is the only obj cii..n I ever 
h ard I thought he was a veiy c rre< t judge. 

Q. He is am n ol family, is he noi? A Yes, 
sir, ' e h.s a large family." I think there are 
ab uttive or si\ in his family. 

Ci OSS - Examination -Question by Mr Trimble 

Was Jud; >• t razier on ihe bench in East Ten- 
nesse- o not? a. no, sir. 

y. > on have htard him condemn the rebel- 
lion A. Yes. Sir. 

Q Op'tdy I mean, after they got to lighting 
in ihat region f country? ■■-■ . We 1, he always 
suoketome Hijainstit He was a man 'hit 
didn't say a gieat deal, because \i was not very 

Q. Noi prudent? A. Not prudent. He always 
ex^.re•sed h ms> I ttat way to me. I frequently 
had conve sation with him. 

Q. Di I lie give ou his opinion about Jeffer- 
son Davis? A. W^eil, I think be did 

Q. Very decidedly agamst him? A. Ag.inst 
him, sir 

Q. What did he say about Mr. I incoln in 
those days? A. Well, Idon't rtmcmber, sir, to 



132 



haveexer heard him say anything. I heard him 
Say a' one time that he thought he was a good 
old man. 

Q. What time was that? A. Well, I think it 
was about 1364 or maybe 1865. 

. J.UT)GE GAUT KECALLED. 

Judge Gaut was then recalled as a witness 
for the respondent. 

Question by Mr Ewing —Were you present 
at trie tune when the Sh' riff re urned to Juiige 
Frazier at your olhce? A Yes, sir. 

Q. State what occurred at that time b' tween 
you sell. Judge Frazier and ihe Slier. 11? A. 
Will, th ■ Sh riff cam di-wu tliere Doctor 
Frazier told you the ^iime thing, that the door 
of the i;apitol was closed The i^henff said that 
there wen' some coloietl persons in ide, and 
that one of th<;m h >d a pistol When I t-ay the 
Sheriff, I think it wus the two iiepu ies, ^haw, 
andltliink the oth r mj,u's n.me w sDavi'ison. 
He is a man of good size. I think Shaw did the 
talking It was the evening of the 19th. after 
the writ had been issued to t.ike Wuli^ims and 
toiiriest He dc. Then I turned to ihe ( o.ie 
whicn was lying on my d sk, and my ivcoliec 
tion is that I f '-ad tuo sections of the lode. 
One was uoiier the habeas corpu> law, showing 
that he nad the same powers ii the execution 
of a wiit. that 'he Siierirf had in thf execu ion 
of a capias. ■ Then I t urned .o the other section 
in the (Jv^de, showing tiie power of a Slierifl" 
having a ca7>ias ti) arr. St a pi^rson u he made 
his l)nsiness known, ami that then, if the lOurs 
were ni>t open, I e h*d the right to bi-i ak oien 
the doors of a house, and to execute the writ. 
Afier reading that to him to show what 
powers the sheriff had, Ju<ige Frizier 
spoke up and said that although fhat might 
be the law or something to th t effect, ihat 
still he did not want him to do that, lie I old 
the Sheriff' to go up there and tell him h's busi 
ness, and if he could not get in tnat evening 
not to he in tiiobi.f a liurry about it, but to 
wait untilmorning It was explained to Mr. 
Shaw and Mr. Davidson, I toll th- m it was all 
very prudent, that the Sheriff had that right, 
and that Judge Frazier's advicc was very good 
and that they had belt r fol ow it. 

Cross- Examination —Question by Mr. Trim- 
Tale— Judge G a t, here is the Cole; lAVi>h you 
to point out those sect ons whi h oureid to 
the Judge. A. 1 read section 3 735 of the Code. 
[The set tion referred to is a= lollow- : 

"In order to make such arrest, ihe Sheriff", or 
other person baviiig the writ, has the same 
power a- is givin to the f herifl", lor the ariest 
Of a person charged with eiony."] 

I then read to thf Sheriff section 5,039 of the 
Code. LThat se tion is as n llow- : 

"To make an an e«t, either w ith or without a 
warrant tlie officer may break open any outer 
or inner door or win ow ot a dwilling house, 
if iifter noiice of his office, authority and pur- 
pose, he is refused ad . i tance."J 

Question b\ Mr. Tri ble— You read these two 
secti >n? ti Judge Frazier? A. 1 read ihem to 
the Sheriff". 
, Q. In the presence of Judge Frazier? A. 

o' You reafHhem to the Sheriff", as the law? 
A Y'^es. sir 

t> Whatdid Judge Frnzier say ? A. After I 
had read them to the Sheriff, Judge F azier 
5f^j(i_l think thi is his language-'- Although 
thctmay be thi law, I ilon' want you to do it. 
Go up 1 here peaceably, and notify thnse parties 
that vou have got a wnt, and th it all you w::nt 
to dois your duty, and may be they wid let you 
in- but if they don'i let you in po^Ipone it until 
morning. Don't use any violence. Don't be in 
a hurry about it." . , ^ ., 

Q Is was preity near night when you read 
that law ? A. Well, it was in the evenii.g 
late. 



Q. He told him to wait until morning? A. He 
tobi hiiunotto use ahy vi' lence, but to go up 
there and tell them his iiuties, and show them 
t' e writ and may be they would open ihe door; 
but it they did not op n the door not to bre .k it 
open ; not to be in a hurry about it, hut to wait 
until morning. 

Q. What was meant? A. I understood him to 
mean that he dii not want the Sh riff to break 
open the do r at all; that if he cou d not get in 
peaceably, to wait umi mornin.., perhap-- they 
would let him in. Th t is wh t I understood. 

Q. Then \ou re d these sections to tlie --her- 
ifi' VI as it to encourage him to break open the 
Capi ol? A. I read it to thow t at he had the 
right to do it 

Q. You read it to make him do it ? A. I read 
it 10 him to show that he had the power to do 
it. 

Q. Did you want him to go into the General 
Assembly? A. No, sir; hut into the rooms 
where the nii mliers were. 

Q. Did ni t yiu know that fifty-flve memhers 
had b"en staying in there? a. I knew that 
there had been a portion s.aying in there. 

Q Did you know at that time that the Presi- 
dent of the United States encouragea this ac- 
tion? You knew that he had spnt in his dis- 
sent f om the ainendmem? A. I had seen in 
the newspape' s a kind of protest to the passage 
of the coiistittiiioi al amembi ent 

Q. Wasn t ir, aeneraliy understood in town, 
and did not you understand it se. that the Pres- 
ident was op|io-e 1 to ihe amendment? A. I 
unde'sioid fiom it ihat he was 

Q. Dm I ot you tin ii rstand that it was the 
general feelin.s here, even to high excitement? 
A I understood that to be ihe general feeling 
ht^re. The m joiitv ol the people w'ereopposed 
to the constituti'inal amendment. 

Q. Y' 'U said that >ou w re not employed 
spi cially. A. I said that I was not employed 
specially. I was a volinteer. 

Q. bid you know M..rtin and Williams per- 
sonally? A. Y'l.s, s r, I knew them both. 

Q. Were the I your friends? x. j ue.ver had 
much intercor.r-e with Martin; I have had 
som-j With W lliams. 

Q Do you think that if the President had 
not been against it you would have read those 
Sections to thi- Sheritl? A. I think so. The 
laws ought to be adiwinislered 

Q Did not they compel jud .res in East Ten- 
nes-ee to lj,ke an oath to the C inf^deracy? A. 
Tne rebels did. 

Q. Did not judees submit to take it? A. Yes, 
sir, I took it myself. I was arrested and taken 
off into a dark loom, I suppos'- at. about 11 or 
Vi, o'clock at light. I did the best I could. 

Q. Are there not other c.:ses where the judge 
does not do what the law requires him to do? 
A. Where superior force is biought against 
bim, he has to ilo the best he can. 

Q. Suppose you bring the force of the whole 
community to bear on a judge does that excuse 
him? A. i sujipose if it is done, and if his life 
Is i" dan er. he would hive lo <io what was 
best, but I ihink thejndgeshould execute the 
Uw impartially, regardless of public opin- 
ion. 

Mr. Ewing— I believe we are through, may it 
please the court. 

MICHAEL HOUSTON RECALLED. 

Michael Houston was recalled by the counsel 
for the State. 

Questi. n by Mr. Maynard— Were you here 
when the Sheritl came up with his posse? A. 
I was here -when the Sheriff and between 
twenty-five and thirty men came up to arrest 
Martin and Heydt. 

Q. Did the bheiiff tell ym\ what instructions 
he had from Judge Frazi r? A. Aftc- a little 
conversation at tne d'or I turned to leave the 
door. The Sheriff" called me back and told me 



133 



he hart orders from Judge Frazier to break 
down ever door in the t.apitol it he could not 
get the bodusof Martin and Heydt. 

Mr Tr niiile— We expected that Judge Butter 
might have been here, but it seems that he h;is 
not come to "■ a-hville. We woul i have liked to 
have examined him, but we have no lurthi-r 
witness to ex i mine, sir. 

Mr Ewing— I vvi^h to move, as a mere mat- 
ter of precaution on our pint, to exclude hU 
testimonyin th s ias6 tending lo prove that 
theiewas a conspiracy to do anyth ng. lor anv 
purpose, on tlH' ^rround that the State has 
wh.iilv fail d to connect Judire Krizie'* with 
any con-pii ac That motion might he argu d 
in a'ivance, but I suopose it will be for the con- 
venience of the g ntlenien a- well as for our- 
selves to consider it in the main argument oi 
the case. 

Mr Trimble— Just enter j'our mo ion and let 
it t:ike that direction. It would just exclude 
all the te-timony in the cise. 

Mr. Ewing— Yes, Sir; pretty nearly. 



ARGTIMENT OF COUNSEL. 

The evidence having been taken on both siries. 
counsel proceeded to argue the ca=e. The ar- 
gument was opened, on tue part of the State, by 
J. J. Noah, Esq. 

ARGUMENT OF J.J. NOAH. 

May it p ease the c 'urt, the practice in the 
Senat ■ of the Uni ed States, and in most of the 
Senates in the differ' nt State-, in impe i h ■ ent 
tria s, has be n for the counsel for the State lo 
open the rgunn-nt prior to th intrniucuon of 
any i vidence. an ' to st ite in general terras how 
they will offer their proo . In th's ca-e the 
practice of the courts oi the state of Tennes- 
see lias been alupted eub sdeniio, ^ind we pm- 
ceod now, according t • the ordi ary rules of 
practice ailopte I hy th • courts of the -^tate. In 
fchearriingt'ment of the arg iment of this cise, 
by the coutesy of counsel it has be.'n a 
duty a-signed lomy humble effort to opnu the 
case. Indoingi-ol hall tnde.ivor to be brief and 
sui'ci' ct: t J be move i by no feelings oi pi.-sion 
orp.ejudice; to be governedbv vihatlbeli ve 'o 
be the rulC'^ of law, "nothing extenuate or 
aug t set dowa in railce." So far as mv 
humble ahilities are co cerned, Ish lle-^di-avor 
to conv uce this court ihut the p osei-.ution here 
in th', lis barge of its du v, hive a high pio- 
vi nee to perform, and with that view I shall 
eo'iimenci' tliL' argument in the case. 

May it plcise the court tie pleading* in this 
case art- vers simple and easih undi-rstoo'l 
The Judge who is here impijiiched, and who is 
at the bar, is charged with having, in the month 
of July. 1866, inerfered by the exe'cise of ex- 
tr.iordiuary ju icial power, hy the exercise of 
revoiu'i nary i leas and revoluti nary nuthori- 
ty, and by the usurpation of powers not grant- 
e I lothejudic ary, to disr^ptand tear t > pieces 
the gari) which protects the inn cence of our 
governmei t Perhaps it may he con<eded that 
in the bare issuance ol this writ the Ju ge was 
not wilfully corrupt, nn I was uut guilty of a 
febmious exer isc o'' his jiidicHl functions 
Perhaps we m ly he willing to admit that he 
conceived it to be his dutv, and t at u' anyth ng 
wrong WHS done by him in that act it wjs 
sinipy a jiidicia; trror and no m ir ■. Because, 
wh napetiti n is i resented to a judge lor h>i 
issuance of this wrii, this h eh prerogative, 
under certain cir iims'an -es, he is boun i to 
grant. The right of the writ of habeas corpus 
was wrested frim King .John by the Magna 
Charta. N<iw Judge Kruzier, in "his answer to 
the articles of impeaohm nt, admits do 
ing the very acts chaiged in those 
articles. He denies the wilful, cor- 



rupt, felonious exorcise of these jtidicial 
powers, an I comes before this court on prnofto 
show that 'f an\ th ng wrong was ■ ommiited, it 
was simply judicial error. He say* that if any 
wrong was pcpetrnte I by him it was only a 
wrona- which any jud.'C might commit, and 
ttiat there wa- not on his piirt as a'leged 
in the articles of impeachment, the felonious, 
corrupt, willful intent which underlies the 
crimes charged as lelonious He chirgesthat 
the Siati' cannot prove th'- malitia and the an- 
imo furnndi. e says that the ?^tte cannot 
move tliis, and that ib ■ facts will not warrant 
tiie p esumpiion Perhaiis. as Isaid helbre, the 
State, in its prosecutio , ma' b' willing to con- 
cede that in the originalissua ceofthe writ of 
habeas corpiTs, upon the pet tio > sigied by Mr- 
t'arriu'an on behdfof Mr. Williams and Mr. 
M r in, that ther • was no wrong in th it. but 
upon a dae return of the wr t, which re- 
turn is admit ed by the pleadings, and « hich 
simply savs that the Le^is ature acknowl- 
edges iiumbly t he au hority of the hitrh mandate 
of the Judge of ti>e court Vei|Uiring the Assem- 
bly to produi-e the body of th se nun; I say ac- 
kiiowledires it, and in a r si>ectful return made 
thereto, th n hy he pi'li m ntary Itw of the 
1 mil, by theackTiovvledged rules md prec pts 
which have govern d parliamentary bodies, 
from time immemorial to t le present h<,ur; I 
say th .t as they coniidere i thutsth'V had riirht- 
fui ju isdi tion ■ ver ilie boiiies of Me^sl•s. Wil- 
lia ' s an I Martin, then while theya'e in the 
jurisd ctionof the House of Re resentatives of 
a free Stale, no court can take connizauce 
thereot. Tlie Serv'eant-at A ms appears there 
wi h counsel. His return li respectfully made. 
Argumi-ntof cou s;^,i is had up ui the questions 
piesented. and without He iher ti n, whether 
h stiiv or not, it is det' rmiiied judicially that 
the Hou-eof Represent fives has no rght to 
entorcel le atienlance of absent membe s;that 
the Hous<^ of Ke|)re-en a ives is acting cruuin- 
ally in restraining the liherr.v of Messrs Wil- 
l aras and Martin; that the House of ttepresen- 
ta iies, in Its sovereign capicty, is 
liable at any moment to be disrupted 
an t torn to "pitees by its members a ting 
in a contumaeious manner; and deciding 
in poln of f ict a proposit on m my mind, 
which IS not only ridiculo s. but dangerous, 
that the ju 'iciary shou d have and claim to 
e.s.ercise the veo power over any and all of the 
aci> f the G ne al v s mbly. 'Because, if it 
m:iy be exer.-ised in one reiiar , it may be ex- 
eri'ised in an ither. If it is exercised in the 
House, it may he ex r ised in the -enate. It it 
i< exercised i i both branch's, it may be exer- 
cised upon the Governor. Ii it miy lie exer- 
cied upon the Go e nor, then it may he exer- 
cised noon the Secretary o' State, tne Comp- 
troller jind Treiisup r, and he whole Govern- 
ment of the State, wiih each ne, of its distinct 
ami co-nr dnate power-., would lie simply t the 
mercy of a y ri-volutionary i'lei or revolu- 
tion iry i-ri ciple ttiat might be elini'uated be- 
f ire uny pet y jndee or mag str te ol 1 w de- 
gree who c >' Id by his ponae cornitatus, hea led 
by the Sheriff, invade tlie sa red p ecinots of 
the Cap tol, and thete do viol nee lo its majes- 
ty. Th s is, in f.ict the principle of the riecis- 
i >n made bv Judtie Kraz er m the case, and itig 
am itterupon which alter th'- evidence has been 
t.k'U a"d the ide^'iiui^s made, 'he ourt will 
hav" to pronounce jud,jmpnt, I nny stiite here 
th itthis is nota piusecntiou against Judge Fra- 
zier perse I may he permit e lostite here 
that It is liO*^ the esireot the. House of liepre- 
s ntaives 'brough the in-trume italitv o' their 
mmagers whon iheyha'C sent uere to con^ 
duct this ca-e, and t'he counsel that they have 
employed, that any violence, or wr^mg, 
'■r revenge snouhl e wreaked upon Jndge 
(fi a ier as in individual; that we have feel- 
ings of sorr iw. deep sorrow, that we are com- 
pelled in tnis unpleasant duty perhaps to cast 



134 



forth to the Avorld what may be thp imputa- 
tion of a cri ne. It is with leeling* of pity with 
feelino:- of ki idness that the coiin<''l in t'lis 
case desire to rej;r.t t le agony and anguish 
the trou ib'. thac follo^v a mm iato the lio-^om 
of hi- Jamily, and iollo*v hi wi'e and chi'dren 
to whom he naturally desires to hand down a 
goi)d nami- anda f jir 'me I svy that we ars 
not moved by any feelings of harshness — that 
we n-gi et this ; but th<- fact exists, and the rea 
reason> are powerful 

I will call the attention of the foiirt to the 
factthao the im|jeachment of Judiie Frazier\yas 
not de i led ui)on until after the called se-;^ioli 
of July, I8G6 had p>s3 d the const'tutional 
airend nen', which Congress, in i *high sover- 
eign capacity as the ^reut law-making |)0 > er 
of the goveininrnt, by constitutional preroga 
five chose to subrn t o th'- Legisl tares of the 
diffe.eat .-tat»s for ratification or re ection. 
and which it had cailed upon the General 
Assembly of the Sr.at of TennCfSen to rat- 
ify or reject. I call the attention of the court 
to x,Up. fact, that the amendment passe I, and 
tie excitement and terror, the terrible reign 
of public opinion, the pressure, the excite- 
ment upon men s minds had also pissed. It 
was an acknowledged fa t iietore the country. 
The public seutmie t had subsided— even if 
man V were n(/t aiisiied with tie action taken, 
an'i th. .e was no more of It. It is a singular 
ch racterist c of ihe Aiuencan iienple thit 
while upon the topics of the day pubic ex-ite- 
ment runs rde and not, and the hot blood riin> 
is not tame, and waits not ui on judgment, 
it is equa Iv true th.it whe a qv;estion is dis- 
tinct y settled, the excit. meat lulis, it -leeps. it 
shimiiers, and i no"^ culled un again until sooie 
other vital question is presented, calculated to 
eall forth -i similar evl.ibition ol excitement. 
AV heu Ju'ige Frazier was i" pesichcd 
by t e House of Weprese tatives, this mori id 
feeling, if yui please, had lulled. Men's pas- 
sions had become ca m, and it was evident to 
the house ol Repiesemativi s that to let ihis 
Diattei- pa s unnoticed would b>- in viol iton ol 
the set"- respect due to sohi.:h a b idy: that to let 
tl.i.i matter sink into oblivion wou d he to excuse 
the a t, and theiact that Mi'ssrs. Williams and 
M-irtin, .acting und'^r the spur, the sting, the 
pvi -k th t w.is thrust into them at thetiiri'^ of 
this hi bens corpus, had bought su ts again-t 
the members of the House of Repres ntatives, 
seekin.; to obtain from them damges to the 
amount of one humiri d ihoiisant doll,»rs for il- 
lega impiisonment, und that process was serv- 
ed upon them, and that suit is now pending. 
If th action of Judge Fr.izier had gone no 
farther, and the a vice of the dis ii guished 
counsel ivpresentin ; Martin and Williams ha I 
not been ^ol I owe I, it is |ir bable that those 
suits against these mtmb- rs lor afts done in 
their repre-entative capacity would not now 
be ou thd cale.idar of ihe court-;. So thit the 
ecu t sees that, as we chari^e, in regard to that 
■willful, feloni lus and conupt act of the im- 
peached, there are matters pending now, 
and growing out of it. which may result 
in great injustice and may mp<verish the fam- 
ilies, the wives and litile children of those men 
who comprise the baud of pa rio s who sat as 
menib rs in the House of Re,> estntatives. 
The., the iinpea hmeuf is to vimlica'e the eon- 
duct of tne Legisl ture and it is not a 1 act of 
revenge. Pumshm nt, say the law writers, is 
not ma. le for revenge Punishment, say the 
law writer upon the law of nature, without 
one bingle dissenting voice, is inflicted that oth- 
ers ma. se and b- "fraid. It i for the luor.il- 
ity o the pe pie and not for revenge upon the 
subject. Therefore I say aga'n th+t ihere is no 
malice ii this prosecution It is in vindica'ion 
of the d gill y ot the House, and in order that 
otbe s may see and .e afraid In the argument 
ot this case it ijossibly wili arise tha' t is ques- 
tion of a quorum may come up under discus- 



sion. It is in proof that m the trial of this 
case below no*' one word was offered in evi- 
dence of the absence ol a quorum but the judge 
and the counsel, or the judge upon the i.istiga- 
lion of the counsel, cho-e to take judicial no- 
tice of the fact that the ne vrspapwrs said there 
wa~ no quorum, to take the nigh lesj-al evidence 
of the ne »soapers. Not one word of evidence, 
' ay it (dease the coui-% wis offo'td in the 
court below as to whether there was or was not 
a quoru n, nor was there i ven a attempt, as I 
understand it, to offer such evidence. It miy be 
a (.oint in tds case. Secti n U, article t, of the 
Con 'itutim of the Siae of Tern essee says: 

' The senate and Hiuse oi Repr sentitives, 
when as-emblel, shall en ch choose a Speaker 
ad its other otHcers. be judges of the qu ilifl- 
eation> a :d election of it* memliers, and sit up- 
on its owi adjournment from day t'^day. Two- 
thirds of each House shall c nstitute a'quorum 
to do business; but a smaller number m.iy ad- 
journ from davtodny and maybe authorized 
by liiw to compel the attendance ot absent 
members." 

Now, the House of Renresentatives, at differ- 
ent t mes and on different occasions, adopted 
1 iws and rules for their government. RuleNo. 
14 sHvs: 

"Nomem'^er shall absent himself from the 
service of the Hou-e without leave first ob- 
tained ; and in case a less number than a quo- 
rum of the House shall convene, th'-y .re here- 
by authorized to s nd the Doorkeeper, or any 
oth r persoi or persons, (or any or all absent 
members, a* the majority of ^u h members 
present shall agree, at tne expense of such 
members respectively, "nless su h excuse for 
non-attendance shall be made as the House, 
wh'U a quorum is convened, shall judge suffi- 
cient." 

Now it may be contemled, and I h ive under- 
stood that sevtral distingnished jnrists who 
are not eni,'aged in this ase, but who-^e sym- 
pathies are against the p o ecuti m on the part 
Ol the -stiite, ay that this word "luw" mei.ns a 
diiect law, that the House of Reoresentatives, 
evrn with a smaller number than a quorum, 
coiild not enforce the attendance of absent 
members without the pas age of a law acte I 
upon by the House of Representatives and the 
.-sen dc, and subject to the ordf^r or caprice of 
b th branches of the Legislature. It is very 
easy for lawyers to tort I i-e woids; it is very 
easy to sav that the w rd ''law" me^ans this, 
that, I r the other. It is verv easy even for 
courts to decide what a pirti, ular word signi- 
fl ;-, nnd even the meaning and the intent of 
the law ma ers; but wheir theqne-ti n ar ses 
se cifie.ally upon tlie word law, and the propo- 
: iti n is pfesen'ed that nothing can be a law or 
Operate as a law only as t i- passed upon by 
boih branc^ies of the Assembly then we must 
look o the e eineiitary writers to see what the 
law mea.is, not what the peop e sav it means, 
or its peculiar appiica ion to suit the idea of 
any individnai, pro o con I rea i from Bur- 
ri.l's Law i»ic ionary, which I think is consid- 
er, d the very hijrhe t authority: 

"Law— [Li.t. leai>. jus; -^ax lag. lagh, lah; Ij. 
Fr ley.] In the most general sense— a rue of 
action prescribed ny a superior. 1 Bl. Com. c8, 
39. 

"In a stricter sense — a rule of civil conduct 
prescribed by the suineme power in a State. 
Step. Com 25. 1 Bl Com -14. Kla kstone's defl- 
noion, in full, is, 'a rule of civil conduct, pre- 
cribed by the supreme piwer in a 'tate, com- 
manding what is light, and prohibiting what is 
wroi g.' 1 he last Clause has been made the 
subj ct of considerable criticism, and is omit- 
led liy Mr. Sergeant Steohe^s in his New < oin- 
ment'iries, («& sup) It seems to have I een 
taken from the -jubeuK honesia prohi'>ens eontra- 
rid" of Cicero's delinitioii of ^eai. adopted by 
Hracton, of which, indeed, it is very nearly a 
literal translaciou." 



135 



For instance, the decision of a court is called 
techn'i'h I'y tlie law (lie decision oC the 
highest court prcvai s whcic thi' authority of 
th- ci'iiit is paramount. Now, Ictus see how 
this word law det' rmined as a rulecorrtsi^onds 
"With section 12 <>f a' tide 'I oi the constitution, 
Wliich rea's as follows : 

"Ea h hou>e m 'y detPrm-ne the rules of its 
pro: edinsrs. punish its mi ni' ers for disordeily 
behavior, :iu I with tlic cmcurrence of two 
thirds cxMCl a member. Init not a seiond time 
for the sani ■ oflen-c and sha 1 have all other 
powers nece-s ry 'or a branch of the Legisli- 
turi' of a free state." 

So th 1 1 insist to the ro' rt,so far as the word 
law ma b«b> la-v deteimineil, "may by law 
compel " so far as a brunch I'f the Assiintds is 
coU'Crued, it me ns a ride of its proceedings 
and 'y all the au horiJe-^ on parliamen nry 
law it is iiemonsirahle thar. the House of Com- 
mong legu ated its ■' roc eding> always by its 
own auih rity, and that the House of i ords or 
the H'iuseof Pe»rs didthesam , »nd that only 
general urin-cip es of parliament iry law wert* 
held tf gov rnbo h. I rio net think that that 
point w 1 b ! di< iiti d. ow t' en su iwse, 
for inst.inoe, that it ecu d besuccessf lly main 
tained here, tliat. hr House <'f Hepr sen atives 
had no r!>:ht to this cous^itutioniil privilege to 
enforce the attendance of its members w thout 
the consent of the Sena e, and that ut nn-y 
time the S<-uate and the House being 
ancagonj^tic to ea h other in regard to 
the O'easuie whi'h was pending n t .e Senate, 
■which ihe house opposed, or vice versa thatihe 
Senate coehl d 'ectiy int-rfere w th, bre.ik i p 
destroy whatV Wtiy the povk^ers nei-,essary for 
a bran" h ^f the Le.isiatu e of a free *tate! 

Why we se • this in Congress, in the !?cn 
ate and in the Hi use of '-^eprese'itativ's When 
bills are broug'it b' fore thi m upon which thev 
disag ee, what is the conrsc? A commit'ee of 
confereni-e is uppoin ed and they meet and en 
deavorto V I oneile' oiifii lin? oi-inions. A law 
that is of geier 1 application for the ))eopie 
may be, in ilie m nds <'f Senators, proper, and 
in the mnd oi the Honse. imiir p' r oi it may 
be proper in one house and improper in another. 
But when a lavv whi. h d term nes the peace, 
the reg.rla ion. thi authority, the streiig h by 
which it ho! s its; If together, it is cohesive: and 
I say thHt wlieii ii b aiich of the l.egisl iiure of 
a fr »e Stale ims no such power wittiont ttie co- 
ordinate of the Senate, thi n I tliii k it i- time, to 
eommence trovernmenr ever ngnin, and to wipe 
it out Liid begin again upon some plan that has 
at least the merit oi common ees in it. 

Now. in reference to this que^' ion of a quo- 
rum. I n;ust «av that the peculiar laniruage 
of this con-ti;uti'>n is verv v gue in some re- 
spects. In section 11 of ; rtide a, of the Con- 
stitutien of ihe St te of lennessee. it says that 
two t irds o each House ha Icon^titut- a quo- 
rum. And in section 2 ot liie same article it 
says that the concurrence ot two-thirls shall be 
necessary. It dOrs not say two-ti irds of tne 
members sworn in, but it leaves it very uncer- 
titin a^ to how two thirds sh 11 be computed. 
Now I ddn't know but wh u i may lie lo iked 
upon as somewhat of an enthu>iast upo:i this 
subject or peha(is ut of the pale ofconmon 
^ea^oning, oras takin^f a^ advrmced pos.tion.or, 
as some of the counsel may think, thai. I .am a 
little hazed a I out it. I shall :nsi^t here tiiat 
two-f^.irds of die Hi>nseof H presentatives, :is 
defined in s. ction 1 means two t irds of ell 
those who hold se its in ilie body, and that in the 
eom'iutationof a two thirds vote vou do not. and 
cannot coun' the vacant seMts th;it you cannot 
count m loimingt^ e l)a«is for a two-thirds v te 
tho-e persons who have died, those pe-sons who 
have been ■ xpe led, those persois who have 
resigned ; thiit you c mnot in compiling tlie 
basis f this >ena' e count the seats of the assas- 
sinated me liber from the county of ubion. He 
has gone frjm among us. It is a vacancy and 



you must compute your two-thirds after this 
redu tion. but iti> not a reductio nd abaurdum. 
It is an e.visting f.ict. Well. « bat was the basis 
in the Uojise of Kepresentativ- s? -Itiiongh 
this does not appeir in the pi oof beibre .Indge 
Fr.izier, yet in :he argnmeit this question 
iiris. s for tne ndjudica ion "f the court, i pro- 
fiose togive my ide.as. Other counsel may dif- 
fei- with me. Now, the who e nu her oi mem- 
bers entith d to seats in the House o Represen- 
tatives was eighty fou T\>o-thirds oi oigh- 
ty-four, accor.iing to my arithmetical compu- 
t.tion, is fl ty-six. But it happened thiit at the 
time ■ f the cal ed session tlieie were fifteen va- 
cancies in the House of Represent .tive- on ac- 
couutof re ignations and on ac. ountof expul- 
sions Co:.sequently. the whole numuerof per- 
sons enti led lo seas bei g eighty-four, i.nd the 
whole number ot ( ersons h.ivin. se ts being 
sixty nine, ihen two-thirds of sixty-nnie wns a 
quoru 1), and th'-reiore forty-six niemb rs con- 
stituted a legal quorum 

Let me say to the coi rt that in 1st Kent, the 
distitiguislied Chancellor mtkes a n te of this 
iitt e casf in diseussi g what con-titutes a quo- 
rum under our constit ;tion in the Federal 
('ongies. He says th.it t alwnys hits ten an 
open question— I hat the Hou^e of Commons at 
one t ine considered one way and a other time 
another, iind it was finally ordered by the 
House of Commons that" tweniy members 
should constitute a quorum to commence to do 
busine s, in forming its organ zatiotr, that is, 
preliminary organization, Idontmeana quo- 
rum to do business in legisla ion but a q loruin 
to coinm'Hce its or^iaiuza ion .'so that the 
question ot parliamentary law, so fur as Kng- 
land is conce ned, was ^n op n one, because 
government <ould not tU •. hit it viould be 
compelled to resort to in order to ma ntain its 
co-ordnate powe s antl give pr tc tion to all 
th ■ peopl '. These were levo ut o ary times, 
perh ps, in En-'lanl; publicsen imintwas in- 
flammable and liuely to be euki died at any 
m ei.eiit, and ihe question v» as very gravely 
and very proper y urged that wha'tever the 
public excitement w.is, the great iaw-makirg 
power of England should b- so surioiindea 
witli saf -Kuar s that no lit le p( tty faciioa 
numbering Hiicen, twenty, tw nt> -oiieor twen- 
ty- wo and thr- e-fonr hs im n court inteilere 
with ihe grea prerog. tives of ihe government. 
But weh iveapiecdeiit in thiscase aed^.s I in- 
si-ta g iveriii iif piecedeur, from which th re is 
n 1 appeal in this country, ana wliich we are 
bound liy in the coiiSiderntloii of a quorum In 
the Congress of the United Stale-, since eleven 
Stites seceded and withdr- w their 
rt presenilation fro'n that body. the 
vaciint chairs remain, and they were not 
counted in computing the two-r,Mrds. 'l"he 
prooi of this pre eiient, the established facts 
in these ca-es, will be i roughtfo. ward l»y their 
counsel, suowin,: that the S eakerofthe House 
of liepre enta ives of the United .M.^tes, p ol>- 
ably the best |)a liamentarian in the cou try, 
c 'incides with my eon-truciion that foity-six 
members cons ituie a quoi urn in the House of 
Repre e:.iative of Tern esse ■, and that the 
douse wa- thereby empowered to lake charge 
of Messrs. Wil i'lui- ana Martin, anytning 
to Ihe 1 ontrarv iiotwithsiundiurt, in the way ot 
judlcid interference 

Now the quest on uf privilege, the innovation 
ol privilege, is the crime which is charged here. 
We charge upon Juge Fr .z er that • y rds acts 
he invaded the hiuh and sacred privileges oithe 
law-making power. Let, us>ee wi'at privileges 
ar ■ I read iruinthe Legislative ijuide bv .loseph 
Bartiett Burlei.;h, L. L. U., compiled from the 
wr tings of .\ oistinguished Viii-inian, wlohad 
something to do with this country and its 
government. I mention his nami — Thomas 
Jeft"er>on. Let US see what he sa^s about it: 

J? irst, in treating of ihe im.oriance of yd- 
bering to rules. I assert that without rules 



136 



that cai be enforced, anrl that can he carried 
into effect, ii wo'ild be mer ly f ircicil to _ un- 
dertake to m'iie taws or to exercise any func- 
tion> of he legislative ciepirtment 1 think 
thiit fact i- well estiiii ished. lu a household 
everv man determines tie rule-;, or should <W- 
termine tnp rues of his own hoi so, unle-s, a^ 
I may jocularly remark, his wife is the better 
man of the two. 

Mr. Jeff-rson says: 

"Mr. <. 'ns o\v,thi; ablest aniongthe speakers of 
the House of Commons, u-ed t > sny; 'It was a 
maxim he had often h^a d when he was h 
young man, fioni'dd and experienced members, 
that nothing- tende I mor ■ to throw nower into 
the h ndsof the ad'ninistaati 'n and those wh.> 
act d with the m 'joi-ity oi the H'-'US-' of Com- 
mons, th n a netflect of or departure frtn, the 
rules of poceeiiing; that these lorms, as in^ti 
tuted by our ancestors operated a^ ^ cheik and 
control on the acti.jn of the majoriiy, and tha' 
they were, in many instances, a shel'er and 
protection to thH mmontv again-t t e att mpt^ 
of power.' So far. the maxim is <eitj,inly true, 
and is founded in good sen e that as it is a - 
way- in the ijower o the majority, by their 
numljers t) stoii any improper mesures pro- 
po.-ed>n ilie partof their opp nents, the only 
weap >ns I y which the minoiity can def- nd 
then selves ag.iins^ similur a torn' ts irnm tho-e 
in power, ire the firms and rules of proceed- 
ing which have been alopted as they were 
found necessary fr m time to time and become 
the law t the House: by a strict adherenc ■ to 
which, the we ker party can only be pr.itected 
from th >se irregularities and :tbu-' s, which 
these orms were intended to ihecli, and which 
the wantinn'!.s nf pAveri but oo often apt lo 
sugi-est to laree and succ"ssful majorities. 
[2Ha'i-.,17l 172.] And whether these forms be 
m all ca e> the most rational or not, is rea y 
not ot so gre t inijiortance. It i- much more 
material t at there should be a rule to go by, 
than w at that i ule is, that th^re mav be a uni- 
fonriity of proieedinv in busine-s, rot suljjeet 
to thecaprie.e oi the speak' r <ir c iptiousne-- of 
the memh rs. It is very m iteriid thatorder.de- 
cency and regnlarit be preserved in a diguilied 
public body. [2 Hats., 149 i" 

Now, then where is the mora' oT it? Why 
the House provide! laws for its government, 
which aote i noon all alike— upon the mi- or ty 
and niaj >ri'y alike. Ihese Liws acted equal y 
upon all. and I >ay that all a iUe are boi nd by 
them whenev' r tr ey eoine wiihin their m. an- 
iog aid purport. "lieuce, I siy, that when 
Pleasant Wil iams Mnil A. J. Martin became 
members of he House of Rep esentat vi s, and 
a q ies. e I in the rules of the House that were 
determined as I he ridrs of its piocee 'inics, they 
be ■ame bound t lerehy, and were estopped from 
absconiling ihenii-elves. at d estopned from 
even demanding the privilege of the writ ot ha- 
beas corpu< Now, the piivileges of parlia- 
mentary b 'dic^ are well St ttled by al pr •■■« 
dents, and I propose to re (1 'he compilation 
wdiieh Mr Jetfers >n has set for'h in his hook i 
re'eren e to h- privileges of parliamentary 
bodie'i. I invite the aitention of ti e conrt to ji : 

'■Thcp ivi e,i{es of th ■ members cf Parliament, 
from small ami obscure heginniugri, have been 
advancing for centuries with a (inn anil nev' r 
yielding [lacu. Claims s' em to have been 
brought lorward fiom time to time, and repeat- 
ei, till some ex imp'e o the'r adini-si 'n ena- 
bled them to l)U hi 1 iw on that e ample. We 
can cay, tiierc'f re, ^tat' the; point oi proL^res- 
sioa at which ihey now are. it s now acknowl- 
edged : l^t. I'ha I hey are at a 1 times exempted 
from que?tion else vv here lor [inytning s d ) in 
theirown house; that, during the time of privi- 
lege, '2d Neiihe a member hinislf. his wile 
(Ord oft e House of • omin'u,. I6e3. Jul v 16.) 
or his s rvants, lor any matter of their own, 
may je lilsynge, vl7; 1 Hat., 21; IGry's De- 
bates, 133 ) anested, on mesne process, iti any 



civil suit; 3d. Nor be detained under execution, 
though levie'1 be for ■ time oi' pri ilege; 4th. 
Nor "impleaded, cited or subpoe aed in any 
court; .5th Norsuminoned as a witnessor juror; 
titn. Nor may rheir ands or goods be di>train- 
ed;and Teh Nor their per ons assaulted, or 
chiracters traduced. And the periofl of time 
covered by privilege, before and alter the session 
with the prac'ice ot short prorogations under 
the connivance of the crown, amoiin s in fact, 
to a p ;rp tual pro ection aga nst the course of 
ju-.tic'!. In One in>ta ee, indeed, it has been 
elaxed by the I'l G. 3, C. fi's which perm ts ju- 
diciarv procedinas 'o g> on against them. 
That these p'ivileges mn'-t he cont nu dly pro- 
gres ive seems to resut from their rej cting all 
detinrion ot them; the doctrine b-'ing that their 
"dignity and independence a'e preserved bv 
keeping their privilege indefinite," ad that 
t'le "ftlaxims upon which they proeeed, together 
with the method ol proceeding, r'st ent rely in 
ihei'- own hrea t and are not T'efined and ascer- 
tai ed bv any particular tted laws. (1 Biack- 
stone, 163, 184.) 'this privilege f om arrest, 
privileges of cnnrseaga nst ail proci ss, the dis- 
01). d'enee to which is pu islvb^e by n attach- 
ment o' the person; as a gubpoina ad responden- 
dum, or testificandum,, or a, sumaio s ■ u a jury, 
and with leason; becau e a m niber has supe- 
rior duties to perform in another p ace. Kvery 
man mu>t, at hs peril, take notice who are 
membe' s of either Houe returned of record. 
(Lex. 'ail. 23 4. ins. 24.) On complaint of a 
breach of privilege, the party may either be 
summoneiJ, or sent for iia custody ol tiie Ser- 
geant." 

Even if tHe House of KepresentaUves had 
sent fir Judge Fr.iz,ier and biou.tiht him there 
to answer for a conteiiipt of it* authority, 
as they uiidoubteilly had t!>e authority to do, if, 
a» I u"nd< r-tand. th' re w re forty i^ix m mbers 
there that wa,s a quorum, perfetly competent to 
do business, and they could huv imp sod a pen- 
alty on Judge Frazier and have held him 
1 o answer for the high contemitt he had commit- 
ted. Again it is asserted here that if any ques- 
tion of privil ;ge a isi s, Martin and H illiams 
are the persons t> c >mpiain that their priv- 
ileges have been violated. Parliamentary law 
states that ihe privilege of a n emiier is the 
p. ivi'ege of a house. "If a raeml>er waive it 
without leave it is a ground oi i>ti i hment, but 
c niiot in effect waive the privileges 
of tie Hou-e " So that if Williams 
and Marf.in could suecessl'ully contend that 
their piivileges had been invaded, i-till the 
House could i ot by implication waive the vio- 
lation. 

"If an offense be committed by a member in 
the House, of which th House has coaiiizan e, 
it is an mfring-ment of their tight for any per- 
son or eoiiit 10 take notice i f it till tlie House 
nas punished f e offender or reierred him to a 
due course (Lex Pari 6S )" 

I here it wil be percei -el by the conrt that if 
an offense be committed by a member, as Is 
ch rged in t is cae, the wamon ane contuma- 
cio' s ab-ence ot these members in di fiance of 
the rules Ol the H<iuseisan i, fringeuientof the 
privileires of the H use. 

Now then, I tidnk that the Senate has no right 
to pass uion the proceedings of the House, nor 
has the Hous-^ any auihoi ity lodet rmiii" what 
shad be the rulesof the Seiiate For in tance, 
the House may choose to meet at noon, the 
senate may be wildng to stay here all day 
without anything to eat— may commence at 8 
o'clock, and ihat would be a i retty piece of 
business if the House cou d h ive iiower to say 
that the .'^en.ite should not meet 1 11 nine or ten 
or eleven o'clock, and should a<lj urn when they 
thought tit. I instance these things to show how 
it iiiav be the merest lo'ly and eaprice to assert 
any such proposition, or to a^sert that, the rule 
cannot be a law unless both bran he of the 
Leg slature had passed upon it. I say that is 



137 



the merest foUy and caprice of reasoning. To 
illustrate: I clairaci befo'e thaf forty six mem- 
Iters coiist-iiiitu a leirnl quorum. Forty-s x is 
more tliiin a m 'jority of eighty four. Now 
•while I concede than a quorum should be a nra- 
jority oi the whole number, yet, in forming »n 
estimate of whur. constitutes a quorum, you 
must nof falve into account Iho^e not eniiiled to 
seats. Kovt -six bein^ m'Te th m a majority 
of eighty-fiur, t e number mtiiled to do busi- 
ness WHS properly and constitution illy a quo- 
rum iheri' to tiansact business ; buf th" law sa-s 
thatan assembly mav make a 'aw tliat asmaller 
number tlian a majorit\ shall ' onstitute a quo 
rum. Well, tliat seems very s'range, that if 
they maj' make a law to con- titutt; a quorum, 
or if less thiM a quorum may'nlorce the at- 
tendance of absent members, that his expres- 
sion '• by law ' in the Constitution of Tennessee 
shoul I "bee n- trued so strictly, and in such a 
catholic manner. 

Then a ain we hold it to be eminently prop- 
er, we hold it to be eminently just. anl t> lie 
binding upon all mt rnbets who accept seats in 
a delib ra ive body, that they shou il lie bonml 
by its rules, and that t!ie oatii th.t th«y take 
means more than a mumiile of words — that it 
should lot be tnken with men'al rtservalion, 
audthatjt chouli not lie swallowtd sugar- 
coated, SHyins , • I swe r to come in here a id do 
my dutv .'it a member of the H /U.-e of Repre- 
sent itivs un il I think othe w se." Ir dO'i't 
mean that, but 'I sw' ar that I wid come here 
and support the Constitution of the state ; that 
in all mv transaction s as a member i will be 
guided by tiie rules determined lor the govern- 
ment of the >^ hoi •; ihat I vv U not nb-ent my- 
self in ;i recusant a"d contumacious m n: er." 
I think tli;it e o ght to ta e it as an accept d 
fact tliat all inembe s are b lund in honor and 
justice to In tilt their public trust. 

Now, then, wlen the return to the writ of 
habeas con us was made, and -Tudge Fra/.ier 
refused to n c ive the return as a proper return 
to the writ, and issued a writ of atachment 
again t the S rgeant at Arms, and a posse 
headed by the She iff. armed with pi-to s, c nie 
lip hei"' , as we think, in a revolutionary, excit- 
ed manner, having hehind th m a mo bid pub- 
lic sentiment whi h bv its own inlluei ce had 
effei vesceil ther iini bubbled thei e in a 1 sorts 
of hostility t • the government, to the Legisla 
ture, to the powers ■)! t e'-tate; then Ciptam 
Heydt was br ughi bef .r. him, havin^^ biien nr- 
rest. d a 4 o'clock n the mor mg 'I hey could 
not wait. They thou^hi, that, perhaps Mr. 
Heydt would i un a'^ayand that the ijrero^^a- 
tives au'! powers of the great Criminal I on t 
aad the Shei iff wuld be defeated and th it jus- 
tice would gn unreuariled, and Ihat it would 
not h ve an oppon unity to assert its prerogi- 
tive. We a e tol 1 that he did not fine iVIr. 
Ileydt. Tha' is b gging the quesiion. It is 
proved that he imuo>ed co-ts; it is immateriil 
wheth r you call it a fine or not. Ii you take 
money from a person's i oc et and pay t i' to 
court, it i~ ii penalty impo-ed,and you may twist 
it and turn u and cad 1 all the "pretty names 
you please, or cut it in halt, or ynu may pay half 
the co-Is, and it s not the annmnt uf doUais and 
cents that is pai I— it is the nrii c pie. This 
monev is exior ed from him as a penalty, for 
whai? W^hy, the Uidge n his answer says he 
"was satistied that Captain Heydt did not intend 
anybrt;.ch i.l decorum or contempt of hi 
court. Well, tiien, that be ng the case, how 
dar-i! Judge Frazier t ke one single dollar from 
the pocket if apta n lle>dt. an oHicer of the 
House, confessedly unable, as is shown in the 
procieiiiniT oi the case to pmduce ihe body, 
unahle to be either guiuy or not gdltyof'a 
contempt a me e neutrsil in the matter— how 
rfare he, I say, take from him one single far 
thing by way of costs or pe aliy for -irnply 
andconiessedly discharging hisriuty? That aci 
was in violation of law. That act alone is sui- 



flcient to impeach any judge— that act alone is 
a c.onlession on his head of a wrong if nn open 
wrong, of all igraiit wronfr, of ti corrupt wrong. 
What are tiie liws of the S'ate? Everyb'dy 
knows hem. If a a man is adjudged notguilty, 
of a Clime, why he 's let go and the State has to 
foot the bill? Now the proper persons on whom 
these costs shodd have been assessed were 
Williams and Mart n. It' the rule which has 
bien read here had been read to the Judge, 
showing tha they wi re bound by the law of the 
Mouse to pay all expenses incifi'ent to their be- 
inu' Krre>ted and bronglu hack, why did he not 
impose the costs upon thtm? Does not every 
1 1 wyer and every citizen k ow that if lU' bring 
a suit or an action eitner in law or in chancery, 
which Is de ided ad vers ly to h m that be pays 
the eo:>ts 01 it? If it i.s decided iu his favor, the 
othe' pai ty pays the costs. Yet we are told 
here bv way of extennutioi a'nl miliga ion that 
he did not impose any fine upon Heydt but 
siinpW let him off with an amount of costs, 
which is aiiont one half of what ought to have 
been legally assessed as costs I do : ot l.now 
how lie intend d to pay the costs, whether the 
sheriff was to get his fee, whether the deptity 
Sheriff and the clerks of the office— if all these 
parties were to be oaid. Ther- were r.o iiems 
of costs made out to h'm, but he was just S'm- 
piy let off for ten dollars an i we are to d that 
J dge Frazier said ihat il he did not happen to 
have ten dellars wrh him h' wuuld 1 ni him 
the mon y. Such exhibitions ar. rare in this 
comm nitv, wh'Te impi cuniosity is t'le rage 
and pr vails everywhere. I have never had 
many persons offer to lend me ten dol ars But, 
in this case, the ten d. liars was to bo loaneif to 
p y lor somethinK in thi court. If I loan a 
man t n dollars ex gratia, and have no security 
therefor, I run the ri k ; but the ten. 
doHar.s were tt) pav his co>ts, and there 
was a degree "f safety in it whicn, when 
you come to consider the kindness of Judge 
Frazier, might n.t be such a great thing after 
all. Perhaps the Judge did not wmt him 
dragged off to jail. We hwve evidimce that 
the fi e wa> as es-ed and paid. Ihat he was 
suhjected to penalties fordoing his duty simply, 
and w hich he could not have avoided uuder the 
c renins ance- except by direction of th ■ supe- 
rior power o the Hou e of Hepre entatives. of 
w ich he wis the serv.ant J he State gives 
ajudtcea sort oi conditional right to impose 
CO ts when in his jud- ment itma\ he nee ssa- 
ry todo.'O Butlsnhmit ih.it no judge has a 
right to be 01 he opini ai t'at ti e necessity ex- 
i-t-. when, by hi^ own coiifessiou, the party 
charged w ith cent mpt wa,s not in f ct guilty of 
it 'ih .t isthe p oposition w ich I assert. Now, 
the c .nspiracy which we have clealy shown, 
to d srupt he ai-semdy, breaii up this govern- 
meut and cause anarchy and coniu iin to en- 
sue, .^s every member of this court must be 
sa isfled fat it was a consp racv.) emanated 
from, and had its orig n in the highest idaces 
of tliecoumry, ii ihe Whi e Hi use, the Execu- 
tive mansioi'at iWashington the res dence of 
tne Chi f M gistrate of the iiatinn built of 
Parian maride, thi^i emh em of purity :. very 
strange reflex ot the inner cund tiunoi "things— a 
/•hi e I sepulchre, beaut ful without but w thin 
full of de..d men's b ncs and all m nuer of 
corruption, vthich shows cone usuely th t this 
conspirt'-y emanated fr m, and harl its direc- 
tion right there, at Wasliington, the very plaice 
where purit ought to have its temple, and 
where justice should be meted out to the whole 
coun ry with equal hinds. 

Whatwasthe leasonloi t^^is? There was a I'ea- 
■^on for it. The Pre-ident of the Ui ited States 
h id announced a policy. Tli, it policy was not 
accepted by the masses of the people i- vents, 
growing ut oi' tne second lebeil on prod iced 
a CO flictof opinion between the Piesident and 
Coiigie-s or b tween the President and the 
people, if you please. A writer said in the 



138 



newspaper pi-ess, speaking of the President and 
eulo^ifiziiii hun, thiiC e irer tliaa hi - Urst born, 
that in 're inporiant to him thm the breath 
which he dri w, was tlie policy of the President 
tohimsel''. It was the great motiv-; p iwer of 
his life, the miiinspring of his e^iteme. and 
upon whici) he rested all hi~ hopes, '11 his fears, 
all his devotio s as the chief niagi--ti- ite of 
this nation, and he was wiling to ruin any 
State, a ly Li-gi4it ire, so th t the wheels of 
his politit-al Juggernaut should crush out 
all th tt dare 1 dis 'gree wicii him n his enun- 
ciations of principl ■ o- his pla firm ot policy. 
What w IS the result ot th sf We ^ee it, over- 
reachinir hin i here at N'ashviU ■. Ic h ippjn d 
that the Pr*'Sidt;nt of th ■ Unted States was 
a Teime soan. It hap ened also tint 
he was Mirronnded bv manv fr ends Irom 
his own State who diifcr.-ti with the people and 
With Congress upon this question of recon- 
stru' tlon and his policy. Congi< ss. in its gie t 
capacity as the law-makihir power of the 
country, saw rtt bv its constitutional author. ty, 
to submit o ihe States ^ pr position for an 
amend en' to the co stituiion for raiiflction 
or rejection. I'hey had the r ght to iio that; 
but, siy the Prrsident a' d his friends, you 
shan't liiect in ' ennessee in your sovereign ca- 
pacity, as the egisl itor-; of tiat ■st te an i you 
Shall not pass Upon that c nstituiouiil imcnd- 
ment; you shaa'i. say wheth>-ryou will ratify 
or reje t it. We will kei^p th t quest on open 
and in a'levan e. he all electioas are com ng 
soon; rt e will br ng our force? to b ar,and i iihe 
langu ige i)f Bu''k Lewis, th ■ I'resid nt says. ' I 
willwhipin 11 these fellows after a while." Said 
he, "You will hivc d — d little u-e fir a L-.gis- 
lature." Buck snyshe di I not think the Presi 
dent meant much h iim, but th ii was the result, 
and we h ive ttie act tojudvcehy. We see the 
motive, we .-ee the pub ic opinion worked upon, 
we See dis injuished coun-el who are h"re, who 
are here r presenting the defense in this case, 
who are of the sam "op nim as the Pr sident 
That IS t iCir ip uion ihey have the right to 
entert in noni st dffercncis of Ojjmion, aii(l fur 
be it from me to que-tion or impugn their in- 
tegrity. But the-e are facts Tiiey we e op- 
posed to the meeting of this i egislaturi'. Cle ir- 
Ty, had a m ijoriiy of r, is I/'gis;ature been op- 
posed to the constitutional a •nendment would 
they, wi h their opinirms, have o ip >sed ih" 
meetinic of 'hs Lej-'islatu e? Surely nor.. Com- 
mon interest, th merest spi cii'. tiv-ideaiu the 
world, teache> us hat they would have been 
in favor < f the meeting. But wlien another 
man's bull gores your ox then it mai es the dif- 
ference Wt" nave -eeii fro m ihe evidrn e here, 
which wi 1 be gou'! over by the counsel who 
Will follow me or the State, how far this 
Presidential iuflueuc ha 1 itseffct here. We 
pro> e th;it ui' mbers ran off, tnat letters were 
received, tliat tae presenceof aqciorum was tried 
to be evade 1, that all s-u- s of iuflu nces were 
brough' to be.r, that they fail ;d. that Judge 
Frazier's pa ticipat on w s undoubted, a^d 
whether w Ufu ly, >!• co'rupfly, or ignorantly, 
it mai.es no differeni'e. I lie did it in ig or- 
ance, in violarinn of tlie law, he i- not fit to hold 
the live . the suf t\' and the property ot citi- 
zens within his co"trol asa judge. Take either 
ground, we have the oho ce. 

If he did this thing i^^iiorantly, he ought not 
to sit on the bench; tf ne did it wiltl lly and 
corruptly, that brings him equUly within the 
meaning o!" the articl s o'' imiie chment, for 
Wtiich hisdisqua illcaiion is required. 

What do wj i.avp next? vve have In proof 
here that the counsel made 'ncend ary speeches 
before I udge Frazier. Men very fri'tjuently say 
things hat they do not, me nur that they d 'not 
iuten.l shal reach a faras iliey do rciC'i. Judge 
Brien, in the court below, according to the 
opinion of Judge Harrison and others, is 
charged with having made rather a political 
and incendiary speech. The Judge thinks dif- 



ferentiy; that is a mere ma'ter of opinion. 
Mani estations of app ause are made; the 
Judge is said to co re -t them ; they still 
conunue; Judge Harrison tells us that it 
wauid have been lar m •ra p op -r to have fined 
t*iese men who apul iiided these incndiary 
ide IS than to hava rtneliJap'. Heydt; that the 
Judge filled in his d ty 'o protect, "^he dignity 
of his court upon a question ;ifl' c ing o vitally 
the whole iniere«ts of the community. Now, 
Judge Brien, in his evidence, explains 
away a p rt of his testimony, or at- 
temps to do so. He sivs 'e did not mean 
what the puiilic th mght he did. P.'ssibly there 
ran in his head a m re kindly vein than he ex- 
pressed, but we must, ta'ie his wor is for what 
they are worth. I is all very well for him to 
come here an 1 apoioicize— that he did not mean 
what h' sail. W would in tnis cnse emulate 
the charity of 'h S vi uir, and s^y, "Father, 
f irgive 'hem. thev kn iw not what thev do." 
But he 'fid it, ne erthe'ess, hU'I th t fact is 
presented h re bevon I < d "Ubt. I was struck 
with another thing, in the t st mony of Judge 
Brien. I •-'■ive it f ir whiit it is worf.'i. I think, 
W'thout impu'j;ning his motive, hat when he 
wasasko'l taequ srio > wh ther he wms not in- 
imical to Gov rnir Brownlow, he sta ed that 
he was not oppo ed to the Stte Government, 
but that he thought I hat B owii'ow was vio- 
latin'.< the laws; Out 'i t he t'H wha' laws? He 
cl limed that Urownlow was viol i ing th ^laws, 
md lie hir ly gave hi a 'he couitc^v to call 
him "Governor." I 'lo not t' ink h^ intended, 
any disrespect but perhaps h ■ th nk< 'h it Gov- 
ernor Brownlow is u 't legi imitely Governor, 
a'ld that there ore he ought n it t > be called 
■•Governor" Whv diii not the counsel tell us, 
when he was noon the stind, what, law he al- 
lu'ied to? That is a matter of opini n. We 
thii->kone th ng and Jiidg! Bri-n another. We 
think his sp ech incend ary and political; I 
have no il 'Ubt he thi ks tnecnnt ary We of- 
fer pr'iof as t > the f ict, hut let t-at g ■ f r what 
it is worfi. He is a man of force an i vigor, 
and his ide s are -en con'.ectcd. He says 
what he has to s ly i ' a forcible vig irons man- 
ner, but et m" say here that this .ippliusein 
the court was a kiml of m irbid feel ng which, 
like the 'Ui ghtcrs of the or-e leech 'Mentioned 
by the wise man in the Pro er s, cry, "give, 
give" It is in evi'ience th it -ludge Frazier ha t 
stat d that he was oppised to the bolting of 
members. I hav ■ no doubt thjt every judge 
In th- State was opp sed fi the brlt- 
ing svstem. It seems a strange anomaly, 
however, tnat when members do holt they a-e 
alio we I to get awiy clear. They bolt out 
under the haieis coro s, under the author- 
ity of Judgi; Frazi".r's" Sheriff and his posse 
comitatus, wh ). arine ' with nstols, e iter the 
Capitol. Anil when men employed to protect 
the property of the Stae, [iresent themselves in 
the way, they a e met with resistance. 
This is in evidence; it has not heen c mtradict- 
ed. 1 hold Ju Ige Fri/ier ind'viiiually respon- 
sible for that. I do not think that Jii'ige Fra- 
zier would have juthor zed the SherilY to do it. 
Far be it from me to say so, but when ap arson's 
acts lire ie\ iewed, and when the-e acts must go 
belb'ethe i ubl'c, linke . in with an endless 
chain that revnlves ar und him, I say that is 
contrary to the princ'plesof justice. Actions 
speak louiler t lan words In early youth I 
read Benjtiin u Franklin's saying , and I also 
remember the Spanish proverb th it ' hell is 
paved with «• od int-ntions." That is exactly 
the aspeit of this c ise. Ii: was a political and 
moral hell from t e oeginning 'o end it came 
neir shedding iilood. The, who'e history of it is 
well Known, and I cannot see any exc se for it, 
either in p irlia ecut ry law or privilege. 

.-xnother thing is off red in evioence which is 
a sirane-e a- o nay Judge Fr zier and Judge 
Lea hoth have tie character of being eminent 
jurists, and they are both considered to be men 



139 



learned in the law. I do not arrogate to myself 
anv knowledge of the law par mount to others, 
or even imagin that with my cold Northern 
blood I h.vet-ven learned anythinjr particular- 
ly more than was learned «ls( where. But 
J h;ive filled to ?ee whyjuiig s who hold po- 
sitions on the bench, and have tiie reputation of 
possess ill If 1 gal a'lility, a'e not |;o,-ted in the 
commonest lau s o th lami, and which are lo 
be found in every elementary law hook from 
Black>tone down oour own comment tors in 
America. ^ on will li d it in S ory on the Con- 
stitiition. and in K'^nt's C Jiniiient vries. Are 
they silent on parliau entary liW? Pcrhap- 
they may b'i tu a cerrain extent, but I 
submit as a self e vide t pn^posiii >n, that (here 
are questions of par lamentary law that every 
judge should know, and ifh- -ays he iioes not, 
he has for.otien ihem Kvidence his been 
brought to bear to show the extraordinary 
Unioiii>m of Judge FrMzier. We ilo not 
like to question a judge's virtue or ids vices 
Prob biy the . ounsel wlio aie heie lepresent- 
ing the ta e and those wh^ repie-ent the ac- 
cused 'ifl'er in their political sentiments. I had 
alwa-- s he:ir i that I udg Gaut w a-- a good Un- 
ion man I liave iiot had h • pleasure of his 
acquaintauci', but su li was my p nion when 
Icame to re-ide in Tennssee; but since the 
policy of the President h s been announced, I 
nave" heard dill" r ntl . It is a matter i-f ctm- 
mon report of which I sh.ill not judge. He 
dlllers unw. What > otsa"Union man" me n? 
For instance, I h iv. seen it stated iu the rebel 
press here, chat the Kadicals are disunion- 
ists, nnci that Wejy ar' Unionists iiutihen the 
cry came up whai is a Uni n man? It is a 
quesiion which is t be consider ii. It is as- 
sert fl that many wh ■ bore arms against the 
governiii nto'the United States ai'd foui-'ht 
bravely nn the b.ttleflel', have no« joined th 
Union party, and ih t they are be tr Uni iii ts 
than Gener 1 IhoniaS, or .Slu-rman. or ■'heridan; 
th;it the rioterj oi .*> ew Orleans, Mobile and 
Memphis are better Unionists to-da 
than ih se officers who loiight fr the 
prouction of th ir country unj vind ca- 
tion of the Anieiic n flag. Doctors disa- 
gree. It IS a verj- seriuuc- question, but 1 
cauonl-. refer to 1 tie Scriptural idea that figs 
caunotb ■ galhi-ied f thorns, or giapes of thi - 
ties. The :, 1 leave you in this strange dii. m- 
ma as to which is the t* orn and whnh is the 
thistle. So, if Judge Fraziei's Unionism ,s es- 
tablished, it dots 11. .t iniiigitean ofl'euse, lait it 
is otTt-red in proof bv thedefeus' that he w.is in 
fdvor oi the ' ou^t tuional auiendment, that he 
was opposed to the bolting. Jt is right th.t he 
bhouhi be Has ti eie bi en any proof oh hi> 
behalf tiat he beli ve that the p >licy of the 
President was incorre t or correct? We only 
judge by ihe tacts. I do not know, and it is not 
for me t • -a- , bur I say tha' we lind Judge Fra- 
zier asso iating with "hese men We lind iiim 
associ^iting with i-iinguis; e coit' sel,'nen w ho 
are know^i to . e antagonistic to the pnblicdom- 
inaut power I siippo e it s a matter of pref- 
eren. e with th s g nt enien thit those ho 
now ho . positions oi poW' r iu the State -hould 
be displac d f r th.' benefit of others, men pe.-- 
haps more eminent in ability, but in my 
opinion, less woithy. It is a serious maiter 
when you get politics into a c se. but th s is 
one of the ^ as s you could not keep it out of. It 
was part 01 i' ; it is part of the res gestce 
It permeates every bra ch of it. It was part 
of the pro-ec.ution ami the dele se. It was right 
that it should be; lor 3-0 u might show to this 
CJuit that the que>iions of policy and polity 
that now present tuemseives to he couuciy iire 
so important that the particu ar individual 
inter sts of every man in the lauil f. om Maine 
to Florida, are nterestiul in the mat er. It is a 
question whether this gover'inent shall live — 
wheiher its fneii'ls shai- tai^eeareor it andr ile 
it. It is a question whether its enemies shall 



have power to do as they sf-e fit, and those ques- 
tions insen-iMy go through every branch of this 
< a-e, and you cannot keep th' m • ut. I Ivnow 
that some m mbera 01 this court^Scnator^ who 
lire li tening to my voice— ditfe.i wi h me in po- 
litical opinion. I know, al-o, that there a' e those 
li.-tening to me who agr e with me in political 
opin on. I know it, and they know it. It has 
b en demonstrated ail ihe way through 
this case. I am informei that at 
times it hns be n nnule insavfest by 
the most inexcusable per-onal idlusions. I 
willsay uoihing sibont t a., let it go; but that 
is the lact to show how eve ' gr.ive S nators 
with their togas on, sitting here as a c mrt ot 
impeachment, will insensib v, perhaps, ban to 
the side of their own prcdi ections. We are 
told again th.it the Judge i a slow man, and 
arrives at conclusions ileliber Uely. fhen we 
ho'd if that is a fjct, th t if wrong was ilone in 
this case, it was a < eUb. r.ite one. Error of 
judgment cannot lie ^leadeil thm in mitigation. 
There was a deliberate wron.r Counsel may 
say here, "why this was an error which any 
juilge might commit, an 1 'or wh ch courts of 
1 ist resort are establisi ed for the purpose of 
CO: lection." It may be all -o, bur— 
"A little learning is a d ingerou- thing; 
Drink deep, or ta-te noi the Pi rian spring." 
We suppose, prima ft-cie, that ju -ges are 
bound to !■; now tlie laws o the limd. The Con- 
stitution of the United States m kes t obliga- 
lOi y lip rn them. Then, again, we are told that 
the judge has always been ai honest man. Far 
be it 'i-om me to undertake by my words to 
"•a-tthe flightest eflection upon him, or soil the 
purity of h s characier. ,11 men are pure 
un i! they do a wrong. Kiii:ene Aram was a 
p re man until he cumoiitted the crime for 
which he paid the forfeit o his ife on the scaf- 
fohi. He was one of the most leari.ed men of 
his nation. 

Ur. Webster, who murdered Hr. Parl.nnn in 
Bo--ron, I believe, was a pu e man, stool hii^h 
in the rommunity, w s a man of character, a 
man of position, surrounded ny a lovelv, intel- 
liifent famil ., and yet under the leinoti ks of 
the devil, and of influences mnl a propos, he 
committal a crime that s nt hiin lo eieinity. 
j-o \oii might say 01 Benedict Arnold and 
Aaron Burr, and corainif down to latter day 
men, John C. Breckinridge. J. ffir-ou Davis, 
and all these other gentl inei wh' m we are 
tai'ght to look If on as traitors, were pure 
men up to the time ot iheir 1 omimssion of the 
act of fratricide. That fact proves nothing. 

It is the spirit in which tie has exer ised his 
judicial functions that we look to, and which, 
in general lerms, I am endeav >ii"g to portray 
to the court ^omi even say that Bouth, the 
great assassin of the worlo's hisor\, ihe man 
who compares hin s- If wiih other regicides and 
parricides, with Brutus, with K vaill.ic, and 
says he is purer than they that he di 1 n.i wrong 
in placing his pis'ol 1 ehmd the head of 
the greatest man this country ever p oduced. 
No man has ever d'red say that Abra- 
ham Lincoin, the martyred Pr sidcnt of the 
country, was ever anything else than a 
pure man, and up 10 tlie ti 1 e of his assassina- 
ti u. Booth was equ.illy pure I do not mean to 
compare Booth to Ju''ge IT z er. I'louot mean 
to coiipare JelTerson Davis to Jidiie Frazier. 
Yet impeichments are made for b s er < rimes 
than the Judge has com nitted. Judge Peck 
was impeached for a simple act of discourtesy 
toward a membi r of hs iiar. Mem ers of the 
bar are ofliceis of the (Ourt; the have their 
rights Justus much as u c m t has its ri his. 
For an act o discourt- sy in striking a lawyer 
from his rolls, Judge Peck was iuipeache I by 
the Senate of the United States, and only failed 
to be convicted for w.iut of a tw -thirds ote. 
Judge Wil iams was impeached for far lesser 
things iu this State, it was a mere personal 



140 



master affecting a pergonal suit, and ho lacked 
conviction also I'or want of a two thirds vote 

A number of ju'lge- hav^' been ii; peached 
and some ren ovcd in Mls-souri f r improper 
practices. Tlie law will be shown to you by 
coun-el. that in England Chief Justices o the 
King's Bench iind minor justice- wre arrested 
and commit ed to the Towerfor impo^intr im- 
pioper penaliies and fines upon i' dividuals. 
That i- one of the charges here. Theie is no 
doubt ot t'e piecedents in these cases. We art' 
told in evidence also, that wiien ro'ibtrs at- 
tacke ' Jndiie Frazier, that one of these dis- 
tinguished highwaymen, a disciple of 
Dick Turpin and one ot the hot-house 
plants of rebellion, I suppose, ttiat had 
sprung into existence, said that he "would 
kill any d— d U"ion man it he could, 
and rob hira. and that he di in't c.ire who 
knew it." Well, the same spirit tha" ani- 
mated tie-Pjis th"} spirit we -ire complain- 
ing to this cauit about. It was th- spirit op -r- 
ating in thi commun ty to disru.it this Li'gis- 
latiire tear it to p ec>s, to commit moral and 
social mu'der in the commr.nity, to irive mem- 
bers from tlieir sear-, to disrupt this suvei n- 
ment, to produce anar.hv and confusion, with 
its concoiiiittnts of lilood 'O'h wing, hs they 
always iio revolutions of this chnracter. That 
is the spirit we comidain of. the idea that thei' 
■would " ki 1 any d— d Union man," the sine 
spirit which ' and'ested itself on the trial be- 
fore Jud.: Fraziei, and wli »h was called into 
mateiial e.xistencc by the unconstious W' rils if 
3[ou ph use, oi Jud'-'e Brien. These ilemonst a- 
tions of iiiip ause showed it. I'ne w ris tised 
here y the Sheriff's pos-e, to"i»ill the d — d 
Yani ee son of a li — h." snows the aiimus of 
■which we c mp ain. It was a d'ilierate at- 
tempt on the part ot ju 'iciul otlicers todisiiipt 
this gov' uiment, and, if necessary, to kdl any- 
body who wht Knovvn. in f;>ct to back it np. 

It is not my intention to dwell owgerupon 
these po nts, or to make anv extem'ed argu- 
ment, or to produce authorities. I her ■ ae 
abler and m're eloquent ■ oun-el who will fol- 
low. I h'lve eiole ivored o open the ease br tfly 
and succinctly. I tepeat that no Idng whicli I 
have urfied h re has been utt. red in malice or 
unkin ness, bur, in co. sequence of my duty 
■which I ave had, as counselor-at-iaw, imposed 
■upon me. I exp ct to treat everythi g in a 
spirit of t'iiirness, :-nd I expec. to betreatetin 
the same way; and when my re -i arks come to 
be considered bv the coues'i for the defe se, I 
trust hit they will iio me the justice t say 
that I have not uttered one word of unkiu'lness 
toward the aecn ed. It is doe to nim to h ive a 
fairand impartial trial I think the que tion is 
not the disqoalifleation of Jiulge F azier so 
much . s it is the assertion o the dignity of the 
govern n enl and the right of the law. as demon- 
strateil by all 'aw makiu.; powC'Sand all u- 
thoriti s. I is tetini; near the hour of ad- 
jouriinient, and wiih these ri marks, thanking 
the oouit lor iheir attention, I wil conclude. 

The following motion was then offered by 
Senat T Carrigan: 

Resolved, That the counsel on eithfr side of 
the ease before this impeachment coift, are re- 
spectfully lorbidien ani hereiiy reqnes ed nor 
tj re er lo or i|iscu-s in any way the present or 
past 1 olit c.d sentiment^ of he countr^. 

Resolved further , That whe • any of the coun- 
sel for the State or the re pendent r. fer to these 
political entimtnis, th^y shall bd called to or- 
der. 

The Senate refnsed to adopt the motion by a 
■vote of four ayes to fourteen noes. 
The Senate then adjourned. 



FRIDAY, MAY 24th, 1867. 

The court met at the usual hour, all the mem- 
bers being present. 

The minutes having been read and approved, 
the argument in the case was continued. 
ARGUMENT OF E. H. EAST. 

The next argument was niide by the Hon. E. 
H. East, one of the counsel for the respondent. 
He said : 
3Ir. President and Members of the Court: 

It has been devo ved upon me by an arrange- 
m ntbeiween myseli and oiv colleagues, to pre- 
sent to you first the cause of this defendant. I 
know, gentlemen, that the teiiiptation is very 
grt at to counsel if not to Senat iis, to run oil' 
into an illegitimate lield of discussion. I know, 
moreover, that in the opinion of no Senator 
would It be do ngjustice t > this detendant or to 
his cause, in times like these, sa ily ou' oi joint, 
when eviry part presents radica views, when 
extreme rntn spring up all over the country, 
that ihe cause of th • d'deiulan si ould be b end- 
ed w'th the views of these extreme men, and 
that he wo old tie denouni ed. I um free to ad- 
mit, -ir. that it is legitimate thai so much of the 
spi it of the times, political o ( thirw>se, as 
has found a lodgm I't her, to ore in Judge Fra- 
z er's irea't and affected h s decision, is a legit- 
imate theme and li' Id foiilijcussion ; but 1 de- 
ny the ri;,'ht of c>un!.el or of Sen it r-; to try 
Judge Fiazi. r by the loo e exrn ss ons of trood 
or bad men, or to censure or condemn him for 
wha. others have m iniiested. order to 

avoiil, Mr. Pr side t. all such discussions, (;r 
the tempcatiou to digress into that heUl I have 
at the ' lo'e of each day's wirK, in th s body 
jotted down, in extendeil notes, ucii th ughts 
as 1 desired to su' mt to the court. 

It has em said more than once, since this 
tr' 1 commenced that ihi^ is a -oieinn pr iceed- 
ing, and the heart of every man w o nas par- 
ticipated in it, and who is tOt evoid of all that 
f-eiing which characterizes an enligiitened 
consc ence and makes up common justice, re- 
s onds to the sentiment. 

The H.iuse of Keor seatatives of the St ite of 
Tennessee calls upon one o> the puli ic oflieers 
to answer to a criminal accusation against his 
oflici I c nduet. 

I he honor ble managers on Ihe pa t of tha 
House o Kepresent-aives, aided by the learn- 
in ■, experience and abilities ol distinguished 
mem'iers of ih bar, have, hyt'ieir persever- 
ance, zeal and industry, laid before this court, 
and the world, the crime oi whi h Judge Fra- 
ier .-tands accu-e ■, in their estimation, and 
have and wil devo e t) the aocus tion the 
war.uth of ttieir natures, the ar orof thi ir feel- 
ings as lawyers, ind «ill constrain themselves 
to aconfl lent b lief in tlie nee ssity and justice 
of his conviction. A hij;h r duty "f r, de^'olves 
upon you, as toe court, auii whi h duty .»ou arc 
permitte ' by the aw to discharge alone, under 
the sanction of an oath and aft r you had called 
theev'e of Omntpot nee to bear witues-, that 
in all thing'; pertaintnjr to the def ndant and 
ttie acc s ition, you would do equal ana impar- 
tial justice. 

Ii is no trivial cause that authorizes theStnte 
to arrest one oi its public servants, and arraign 
hiin as a culprit and criminal before the bar of 
jiisti e, ai'.d make him a mark to ree tiess 
prosecution and kiidle around iiiin a blaze of 
prejudice and passion. 

.■\n impeachment against a publi •. officer 
comes in t ,e po ential name of tlie State— is a 
fe rfnl powe , that cominanis the resources, 
energies and treasure of the goveninitnt; calls 
into its service the genius, talent, and elo- 



141 



qnence of counsel, inspired with the profes- 
sional fieling oi success, and may be a laud- 
able desire oi lame These powers, one" set in 
motion— th s sea of passion once st rred to its 
depths— mav r ise a"wuv> ol piejudice, which 
in a moment miy hurl leaso; f em her tbroi.e, 
and beat down beneath its angry flood the help- 
less Victim. 

A recurrence to English history, from 
■which c uniry we di rive 'hi? tbim of tria , 
furnish' s many most so emu iilu»tr<itions o 
the truth f these remarks, and e'<n in our 
own county. W'here it ws i.nce thongiit the 
safegutiid- of law v" ere se;ur Iv thrown around 
tht. liberty 01 the citizen, jni(ieaihment^ iiave 
been resoitt d to, and the demon spirit of p a-ty 
has attempted he saciifice of illis'^^r ous vic- 
tims, and opijressiun, cruelty and foul injustice 
have bn ughi down riiucub", comempt :irid 
scorn upo th'' gr y hairs ol judi^'ial s rvants, 
"whose live- and virtue were embodied in it.eir 
country's history and ihi ir count y's fame. 

Tis trie in proceedings of his kin , thelile 
of the licensed is not at ihe disposal of the 
judges o accu-ers, and only for till' time con- 
sumed in thf trial, are h s p'ivileges and liber- 
ties abridged. In iiV other respects, lie can be 
made the vii tim < f torture and abuse if he 
be innocent, hi^ repu a ion is byo -n the jsrasp 
Of haired vr maiiie, and although his 'ips may 
for a time be s-eale'i in revereniial silence, 
"public justice is ct rtain, and v\ili pievail."' 

S|ieaU ng oi impeachments, Mr. Jusi ice Story, 
in his commc ntaries un the constitution, vol i 

Ease Uri, says : "The prostcuti n will seldom 
ul to agitate the pasnionn of the whole com 
munity. and to divide it into parties, more or 
less frierir ly or h stile to the accused. The 
press with its unsparing vigil nee will ar 
range itself on either side to lontrol am' influ- 
ence public opinion; and there will always be 
some d.ing r that ihe decision wi 1 lie re^^u ated 
more by the comp native snength of par ies 
than the re 1 proofs of innocence or gnili." And 
on this iiccount, suys he, •"ic requires to be 
guarded in its exercise against th' sp r.tof fac- 
tion, i he into erance ol party and the suoden 
movements of the papubtr feeling." 

It '-uch be the lendencii s of trials of impeach- 
ments, in ordinary time- and occiisions — a^ the 
experience of man attirms — and such the warn- 
ings o'. w sdom, need 1 say that the circnm 
stances upon whi''h th's proceed ng is based, 
and the time in hich the cou t is called tu give 
judgment, warns each member to avoid this 
tendency, nd to hold himself aloof from pas 
sion and bring to the considerai n o this cause 
a heart and mind unstained with pr judice. 

The de.eiiduni; i- put ui^on trial at a tim-* 
when the i assions of the entire nation so lateiy 
ar'use') have not lulled from tiie recent storm- 
when crim nation and lecrimination o peisons 
and parlies make up the 'uneni literature of 
political journalism— put upon trial before one 
branch i.f the Lgislaave depart'nent for an 
allegecl b each oi the piivileges of the other 
branch, ^^ hich the latter piosecutes. 

So jexlou is the spiric of our laws of th^^ lib- 
erty of ihe citizen, sind so we i the framers of 
our const tution Jinew the influence of passion 
and p.cjuilict- by whic'ii the action of courts of 
impeaci ment were quicbeneu; and to !-e ure 
an imyar ial trial, and to gUiird public otliceis 
Irom being sar.iiflced to the sudden impu ses of 
popular resentment or lariy preitominance, 
that a limitaton was inttrposed upon the ac- 
tion of a majority, and the concurr.nce of two- 
thirds of the members sworn iis trars in order to 
a conv cti n Ii a majority were sutlicent to 
convict, as tney are to u ake laws, there would 
be daigT in times of popular c mmotiou or 
party spirit that the influence of ti e House of 
llepresentatiV' s would tie found irresistible in 
the t^enate. or the corruption of a bate majority 
could displace and destroy a meritorious public 
oflicer. 



I sha'l not present to this court the qufstiou 
of whatnu t be the natun.- :ind chaiaiter of 
the < flense for which the officers of Lite State 
are imp' achalile, but shall content n.yself with 
a rt ference to the cianse of ihe con-tiMitioa 
and some general discussion pertaining there- 
Article 5, S'Ction 4 of the cons'itution, de- 
cbires that ' the G vernor. Judges of ihe Su- 
preme Court, . I ud es 01 I'lerior i oiir's. Chan- 
re Tor>, Attorneys for the State, and Secr tary of 
Stale, !-hail be liable to initieac' ni' nt « henever 
th y inay,in ihe ouiniou oi the House ot i.ep- 
rese" atives, commit any crime in t .. ir ofli ial 
capacity which may require uisquaiiflcation." 
VV hether the language ' comniit any crime in 
the r ofli'ial ' apa' ity," impoit cr meas distiii- 
giii hei I fr.'m misdemeanor tcomm n law, or 
crime as defli.el in hi- st.itnte b ok of the State, 
1 wi 1 li ave t . others to discuss, and will as- 
sume as a Siiie proposition, which will not 
be iienied, that it certainly imports two 
things: 

1st. The violation of law, either by abuse of 
powt r or assumption of authority, in an official 
capacity. 

2ii. 1 hat the illegal act was done connptly, 
with a knowle ge th.it it was illei-'al. 

I is to ihese two propositions that I intend to 
address mysei I chiefly, and sh 11 t.ike them up 
in rt veise to the ■ roer in whicn they ar. stated. 
I say that it dev. lv<s upon the managers to 
how , heyond a reasonable doubt— 1 r to doubt 
is to acquit- th t the resp m ent committeii, in 
his officuil capacity as jud{.e, an ilK-j^alact, 
a d that he comm tted ihc act with a i nowl- 
e liie of its illegality, and witlr a cor upt intent. 
If there lie no co. rupt intent, no corrupt motive, 
althou' h the act be illegal, and the opinion giv- 
en by ihe J . dge on the habeas cornus bo erro- 
neous and ni't warranted by the law. yet I opine 
the z al of tht; maiiaf;ers or their attor eys. 
will not dri\e them to the point of insisting be- 
lore this honorable court th.it the il egal judg- 
miut of Ihe judye, now ver honestly enter- 
tained, is suffici- nt. regardless of the motve 
and intent of ihe ji dge \\ ho delivered it Who 
dares;iy tha- if a judge acting under ihe best 
lights of his mind, aciuaied by an honest de- 
sire lo attain tie law ot the case, \\ ithout a 
wicked or bad motive, should arrive at and an- 
nounce an il e^aland wrongiul judgmen , that 
such a man is to be ousted in disgrace from his 
office, and his i ame cast out am -ni,' men as 
a by- won and reproach. In the organiz;tion 
'fall tovernment-, Supreme Com sure or- 
dained and estab ished to revit w ami correct 
the judgmen s of the inferior courts; ave, and 
these courls not unfrequen ly revise thrirown 
previous judgments, and announce to the 
w. rid that a decision of the previous year is no 
longer ihe law; 'hit it has been reconsidered, 
reveisid and set aside. What State i-eports 
do not abound with overruled rases? Aie you 
prep.iied to say that all these men— these 
judges, who h-j. e bait up a sjstein of law 
in our own State ujion which rests the 
lineity ol every citizen, and the tith ti every 
VI stige of property, real ir personal, because 
of error iu judgaicnt. are criminals? I ppeal 
to every m mtier of this court, that he m ly not 
by any act oi hs either by intention or con- 
struction committed in the proceedings, se k to 
throw < diiim and nisgiae.c upon the gr ives and 
names of those judg s who have filled the vai i- 
ous judicial positions, wiih honor to thetn- 
selves, their nanii s ami the Stale. Con uption 
in office is a moral term, not a b gal one, and 
implies a bad moral i itent; a wicked design is 
lar beyond an exToneous judgment., or a mis- 
t.ike o( the law. The respondent denies the 
unlawful act or the guilty intention, and the 
burden is on the man gers to make good before 
the c ui.tr , both the unlawuil act a d the 
guilty aid corrupt iment. The gentlemen who 
prepared these articles of imjieachment, were 



142 



perfectly aware of this, and have therofcre 
changeil the inti>ntion in express terms. "Will- 
fully nia i'ioubly and f loniously," are the 
words seleceil, and wh ch they mu^t make 
good, MS ail indication of the intent and in .tive 
wh'ch pioinpted ha jutge in the deciion h.- 
gave; and since iho ma asters have se i cted 
these words, anil are now bound by ihem, I 
am wdling, fir the arjriiment, to concede that it 
was but I heir way ol charging a corrupt in 
tent— a bail heart; an l tnat they mean to say 
that in tlie decisl ^n given by Judge Frazier 
npon the habeas corpus, he was guuty of cor- 
ruption in ortice. 

^o\v, sirs what is corruption in office? There 
is no statute diiiining it. There is no tt ported 
case of wliich I know ;inyth ng, that under- 
takes to give Its height aud depth, or bngth 
and lueadth. Ti i eand a^ain nas it been in- 
volved in mpeaehment cases. But impeach- 
ment courts have unifonnly given no written 
opinion upon ei her the law or the fact , but 
ha e vote J "guilty'and not guiltv" upon isola- 
terl pr ipositiors. Wr arc therefore left «t tea 
upon the giv-at qie^tion of corrupt on in office 
and the nece^sury gui ty intent. 

In thecuse < f Jud. e l"ec-, who was tri' d be- 
fore t e Senate of the Uiured States, these 
3|uesi ion ^ were argue I most impressivtly by 
Mr. VVijt and the managers on the 
part of the Hou-^o of Reprcsemative . 
Andalihou.h the proof was overwhelming, 
that Ju ge Peck wa^ gui'ty of oppre^^s on and 
wrongful and \inia\vfiil conduct, and the na- 
tion belt' ved he ought to have iieeii punishe 1, 
yet, bi cause ti< re w s not satisfuctory ' roof of 
a wrong 111 intent, of a bad and wicked heart, 
IntheolHcial acts ch rged agiinst him, the .■sen- 
ate of thd United St des acquit -ed him, and ac- 
quitted iiim upon that ground alone. I p opr)-e 
to read othecourta ortion ot the argument 
of Mr. Wirt, and which was affirmed ta be the 
law by the flndiug of the .Senate. 

Mr. East here read the following extract 
from the argument of Mr. Wirt, above referred 
to: 

"Sir, it is a material part of the charge, and 
it is m.iterial to prove. Let them then pro. e— 
first, thai the r< s, ondent acie I unlawfully in 
pronouncing the sentence which he did pr >- 
nounee; l)utii tbeycin make out ihis iiroposi- 
tion, (wiiich we conce ve to be impossible.) they 
have something m -re i ehind, for they hive 
churjied, that in acting thus unlaw: uily, he did 
it with the intention wroULfully and unjust- 
ly to opptess, imprison, and t)therw;se injure 
the ."-aid L;ike E. Lawless, under color of law. 
Now, if the respondent thou srht that he w.hs act- 
ing lawfully, an < ^o act d with the intention to 
di.schiir .e wh:it he conce ved to tie his duty a-* a 
judge, he cannot be gu Ity of this charge; for 
he could iroi; iiav •. tai<en th'i step with the in- 
tention wronglu ly and unju^t'y to oppress and 
iijui'd! Mr. LawleVs undercolor of law. The 
charge I ecessariiy imp ie.> that the iudge was 
conscious he wa- u-urping a power that lie 'lid 
not po>sess— that he di I ii willfi.Uy and know- 
ingl\— and i bar. he did it v\ i h the intention 
charged, wrongful y and unjustly to oppress 
Mr. I av\le-s und.r color <'f law 

"Now, sir, this piop>)i-ition the honoraole man- 
agrs are bound to estab ish in l>oth its terms 
by the evidence in tne case. It wil not be 
enough lor them to excite a suspicion, to raise a 
doubt U|ion the suhj ct. to leave the mimls of 
th- h iiiorahie loiiri ininquilihrio; t\Ae\ must 
cast the balance disiinc Ij , remove every reas 
enable doubt and plice the illesrality of the 
ai't, and tiie guil. of the purpose, beyonu ques- 
tion, bc-fore tney can extiect iromthis honorable 
court a .-en^enee of guilty. 

"One of the honorab e managers, seeming to 
per eive the iinnoss.bility of satisfying any 
candid mind that the respondent was guilty of 



the intention charged, endeavored to escape 
this rule of the ( riminai la ■ by contending 
that it fixed on the n spon''e t the commission 
of an unlawful act, theguilty intention charged 
in the iiTipi achment, to lowed a» a necessary 
imp ieavio of law. t his I oeny; for Hien, every 
misakeof law on the par < f a jndge wiuld 
become a crime, or a civl injury for which he 
woul I e per-onaUy repon^ihle. i he honorable 
manager sought to illustrate fiis proposition by 
the Ci^^es Of murder and forjrery. • If," said he, 
"a party be proved to have co^ niitte i a deliber- 
ate murder, wid he not be presumed to have 
intended to commit murder? Is <epiH-ate proof 
o' inteu' ion tver requi''ed in such !i Case? Or, if 
a man be proved t > have committed forgery, 
will not the law inf r the inten ion from the 
act?" This is plausible. Let us ex.ainine its 
solidity It is ttie propiis tion which they must 
maintain, and from which alone they can have 
any hope of success in rhi'^ ca-e. Is it sound? 

The ask, first, if a man be proved to have 
committed a de ib^rate murder, wh- ther the 
law requires any separate proof of guilty in- 
tention? ler that aruiltv int-^ntion is a necessary 
part o the p oof of a deib rate murder. But, 
t at is riot a cas in wnich the law mers a 
guilty intention fr>m the <implc act. Murder is 
not a simple act. It is a technical t rm. present- 
ing a c muound of at and in'ention . the act is 
t-ic killing, the intent is of purpose and with 
malice a oreth ught But, let us take the act 
by itself, anil see whe he. the 1 iw will supply 
by implication the guilty intent on 

"Tiie analysis wd pio'^'e the tallacy of this 
pro losition a tempied to be mainiained by, the 
honorable m matters, and estublish ihe soldi - 
ty of the principle for which we conten ■. 

"The simple act is killinx a reasonab e being 
in th- peace of the country. If on mere itroof 
of the act of killing, the law would imply the 
guilty intention, then all killing would he mur- 
der. Hut IS it -o? We. kn iw thiit it is not. 
Every lawyer is fimiliar with the thre^ sreat 
divisions oi' h micide. into le'oniou*, ex'-usable 
and just flatile. I'ek.-iws that ihe first felo- 
nious homicii e, is again sii'idivideil by th-j cri- 
terion of intention; that the first grade is of 
murder, which is done of pur lOse and with 
malice aforethouLhc. the nunishment being 
death: the seconi m ins aughter, in whi -h there 
i- the wan', oi th.at deliberate and guilty in- 
tention, but which h in^ d' ne suddenly and in 
the heat of I'as-ion, the kflfender ha the eneflt 
of c ergv. The theie is excu-a'de homicide, 
and killing in se.i-defense or hy nisiorme; 
:.nd jus itiaO e homicide. a> where the killing 
is in ixeeutioi) of Ihe sentence of law or for the 
prevention ot crim -. 

" In all these cases the simple act is the same 
—it IS the killi g of a human b ing What is it; 
that sha les off this same act from a crime of 
the deejies dye, thiouijh all its gradations, till 
it bee )mes n<)t on-v innocent but an act of 
meri' ? It in the intention. Ii o e man po son 
ano herof />w/j90sean \ with malice afore' hought, 
it, israunk-r But ainot eruo sons her child, by 
giving it arseni'-. through mi-take f r magne- 
sia .••he has don-' it with d<> i eraiion, and 
with theexerci-euf best judgmeut ihe act is 
the same in both ases— it is killing by poison. 
Why is it crin e in one case, and no crime in 
th othir? Becau-e of the difference of inten- 
tion proveil ; lotadflerent intention implied 
by law ; but a dia rent intention established by 
proo'. 

"Take the other il'ustation put by the h -n- 
orable manager, th ca e of forgery. What is 
(orgerv? It is th- fraudulent niaki g or alter- 
ation of a writing, to the preiu'd e of another 
man's right. Ti^e trau'lnlent i tenti m is here 
ag;iin an esS' ntial part of the ciime. It miist 
be done to the p eju'lice of an' ther man's right. 
But the act 01 i uitatingthe hand-writingot an- 
other, so as to deceue even the man himself, 
and lead him to ttdmit it to be his own, may be 



143 



done, and is often done, winiout a crime. It is 
done throtigli i> a iiiln s , and is remiercd in- 
nocent by vlie absence of al riuiiulmt inten- 
tion, all intention to pnjudice another man's 
right. 

"It is true, that f a r"nn be p'oved to have 
made or iilterel a writing ill his own emolu- 
ment, and t the prejiidi e ol another man's 
right and ihe proi t' sto|) ■ here, the forgery is 
proved, bt-caii^e ^hi'fr ndui nt i tenrion is ap- 
parent in the proof of tin- f ct< already exhib 
ited. Butih ti nor ihe c-ise of an intention 
implied by o rer t on of law; it s the ca^eof an 
intention proved by th • acis in evidence. The 
tacts are ntrcrly inconsist n' with an !■ nocent 
intention, and are consistent only with a, guilty 
one. 

"But permit me, under this ' e-id of forge^'y, 
with wlii h tue honnnnle maniiger haslurni-h- 
ed us, to iiut inothiT -ase. raiher closer in ooint 
of analogy t J the cMse ai b r. I e us suppose 
that the m in »ccused of forjrery holds a power 
of attorney t use the nHme nf his principal in 
a great variety of specifled crises ; andsu|ipose 
that son. e of the sp' citicauons of his power.', 
are so equivocally worded, thar he might well 
have supposed himself iUitborizc'd to use itin 
the case cnaige I as a fo' ger How would the 
court pre iding at ihe tri:il ch 'rge the jury in 
such a casi V Would tliev say. 'Gentlemen, 
take the power of attorney and examine it, 
and it >oii tliii.k, ■ n a fair const uction of the 
instrument, than itgaveldin no authority to 
use the n me i.f his princ p;d in this <-ase, he is 
guilty of lorg ry, and .\ou most find him guil- 
ty? No, s r 'Jh cou- wouM ake the instru- 
ment into ihei'- own h.inds. I'hey would scan 
its t rm-. T ey wo .M tell the jui-y that the 
power was So amiiiguou-ly expr-ssed that the 
manniig t we 1 have supposeii h niself auth r- 
ized to do the ait which he had done; 
that if he could reaso-iably he believed to have 
supposed h ni elf o anthorizc'd w ieh, under 
the circurastinces, he migh' w 11 have done, he 
was gui'ty of no eriin •. h -.•aue the act. d:d i ot 
make him tudty nnl ss hs intention was 
guilty— and t'lat in such a ca-e to doubt was to 
acquit. h..venifth>i conr t ems Ives, in such 
a case, s'- o Id be of the opinion hat the letter 
of at'.orney d d no on a correi't oustruetion, 
authorize" he act whi h had been done, they 
would then -ayihathehad dooe anunlawlul 
act, and, ii a ivd » it, tn > would set it a^ide 
as against hi- principle, ecaii e it hud not 
been done within th ■ S' ope of his authority. 
But could th -y, m such a a e oi'.e to the con- 
clusion ti-at he had > one a crmndact and 
puni-hhim or iteiini ai y? Nev.r, so long 
as a fair doubt could exist i.s to the guilt oi his 
iatenti/n. 

"Transfer this reas-oriing ti the ' a^e at the 
bar. The re p>niieut's eouisvl entenain no 
doubt th It., under the b.ws ol the land, he 
possessed the p wer wh ch he exe cistdon this 
occasion ; 1 hat the cas was a prope.- one for its 
exercise: and that it w^is exercised in trood 
faith, under a con cic tious sense of duty. They 
believe t. at the ci.se st: oils a thorized andjus- 
tified by all f! e pii'ci le m'uI all (he prece- 
dents whi h hive bei'u pi iced b fore you, i oth 
in the English :nd mei lean b "ok-,. The hon- 
orable mi. grs 'n the other hanrl, say that 
thev difier with us n ihis opinion; that these 
authorities pav- him no s ch i nwer, that they 
exttnd hut a 1 tile w y ; and h .t the respond" 
ent passed the li e iiiu \' tiround him 
by the bo k-. Now, sui pose that th s hon 
orable coui t shi uld be<iftbe • pinio.i that the 
respondent hud not , he p <w r wiilch he has tx- 
erciseil ; that Me jn ge-, vUiose < xampie h.- 
has lollO'^ed mistook tm law of contempt that 
elementary wr ter> h therto < reived as au- 
thority mou' tribtinals h \e carri'd 'he power 
of ihe" cocirt too f r;or suppos' they shculd 
think thai the resp oioent has (ui.^construed the 
authorities ; that they do no in reality go the 



full length to which he carried the power; yet 
if I hey fhall al.so believe that, from ihe ex- 
isting st.ite of the auih'-rities, eh mentary or 
reputed, a' d from th- course, pursue i bv other 
courts in like ciises, both in England ;"nd ihe 
United Sate-, the nsponde' t might have be- 
lieved he had t"e i ower, might have thought 
the case a proper oue f r the exer. ise of the 
power, and might hvvebeen ifluinced by a 
stnse of olliciiild' t> in d ing what he did. Is it 
possible that undir circumstanc. s like these 
you c n allirni, on our jnoi iai oath, not only 
th.it he had no power, biit that he k ew he had 
no power, and must have consc ously and in- 
tentionally su ped he power for the guiUy 
purpose of oppies-ing Lawle-s. Sir, c in it be 
denied that such is the state of the anihorities 
that anv |irof .-sional mm ot the first s ienceia 
his profess!'. n. migh , wih ali hs heurt and 
conscience, have fully bel eved a d affirmed 
the existence of the power ? I will 
venture to assert t at y u may con- 
sult o e huniired of the most eminent 
lawjers in this country "ii those au- 
thorities, imd that a great majority of them 
will * xi>ress.iu opinion in lavor oi th power. 
Permit me to s tns honorable con t— he au- 
thorities have all be^n lead before yon- would 
it detract, from the r' put 1,1 ion ol the first law- 
yer in the land t < expre-s the opinion that ac- 
cordii g to these author ties, he power to pun- 
ish such a coiitem- t e.xists in osir Cou' rs? You 
might diflfer wth hiin in opi ion. out would 
you pronoii'.cc him ignoranL of his iirofession 
— nay, more, wou d you pioijoun e nim a 
scoundrel lor having such an opin on? Yet 
this is the drift of the argument on the other 
s de. You are c.ilb-d upon to pionoun^ e Judge 
Peck to be a criminal, for doii'g no m re than 
what he s iw had been done, not onl in. Eng- 
land, but in all the coirts of the United 
Sta'es. Yes. sir; in those States which 
have been ihe oiidest an i stionge i in favor of 
the libertv of the p es.- and the right of trial by 
jury, this power bus been exercised by the 
courts, l.ook at irg nia. Is then a "^tute ia 
the Union more truly repunlican, mo e lofty 
and h gh m nded; more ardi-nt in the assertioa 
of all popular righ's? ^. et in th t Sate you 
have seen. >ir,tha. this same power has bren 
asserted and exe cised by her <ou ts. Hud de- 
clared t) oe indispens hie to tfie protCiition, in- 
d' penience and utility of those t ibunals. 
Now, sir, with -uch .i b St ot precedents be- 
f)re him, was it ^tringe ih^t Judge 
Peck s ould bel e e the nower to ex- 
ist? And if he migh'" h ve so bd- 
lieveil, can you inf. r fr.>m .he simp e a t of its 
exercise n irimind intention? l< r this is the 
argument which I m now resisting; the argu- 
ment being, that if we h,ive iiottlie'ai hority of 
th law for what he did there is no ni <;essity 
to inquire into in: II ions; b cau-e the act being 
unlaw^'ul, Ihe guilty intention lo' ows a a nec- 
essary consequ nee" Is ly, on the contrary, that 
thi! q;;e>Lion of legal power in t is c.ise, is a 
question on wiiieh th<' iiio^t enii h'.ned e.enof 
ihe profe-sion may hon slly d ITer in opinion; 
and in t is case consider my.-elf as making a 
very lib r.d C'.ncis ioii beeause I rea ly think 
the power so cleaily as erted oy al the author- 
ities, that but for what we liuve heart, we 
might well hive .intiv;ipated an enti e unanimi- 
ty of opinion in its favor. But it is not eiough 
for my arg me. it, to s.iy it is <i. po .ver wi'h re- 
gard t ' w hi h enii. htened and honest men may 
well differ in o ini n ; for if iliey may honestly 
differ, tnere can be no c inie or misde- 
meiinor in holding or a ting upon either 
opinion. Yet^ by the argument which 
I am res is i g you are ca led uoo.-i to 
say that if on your coi struction of the authori- 
ties. Ju ige Peck ha 1 not ihe p wer which he 
exercised, it lO low- as a legal conseq lence that 
he acied with th ! cri idnai ini(.ntion charged 
in the article of impeachment. No, sir; aj udge 



144 



may mistake the law andftillbeanhouestman. 
How ot'ten do we linrt the most upi-'ght iiml en- 
lightened judges diflferinx in their opinions on 
questions of law? The one side or the oihiT must 
be mistalien lor botii can ot be right The one 
side or the other must be lor doing whut is un- 
lawiul. B"t does it therefore lo luw that, the 
Side which i-; n c-vror is or minal? 

"Nay; ■\e havH>ometime- even a whole bench 
admitting tie error oi a former decision, nnd 
soltmidy retrjcting that error; luit who ever 
suppo^ed th it they were criminal, either in the 
flist 0|imion or ihe as? Tt.e law is not one ol 
the exai-is iencfS; you cannot reduce lis pri ' i 
pies to deni )ii!-traiion. Ditleronces of op niou 
among i s pnitVssorsaroproverbit'. It is tor this 
reason that ppellate courts are ins'itutLd V\ e 
see the opinion of interior courts reversfit every 
day, and this is not only m civil but i c 'minal 
mut.eis. Hut no oie ever thought of impi ach 
ing an infi rior court btcau^e it has misiaken 
the law; anil yt t, aocording lothis a gu nment, 
they ought lo be impeache i in eve y >uch ca'-e, 
because an nnlawfu a -t, we arn toid, necessa- 
rily involves a cr minal int -ntion 1 respect- 
fuliy insist, iheiefore. that although you sh u d 
differ v ith Jud^e I'eek and his conns 1, with 
respect to the int^-nt of his judicial powe s, and 
think th. t he h id not the powi-r to punish the 
conduct of Mr. Ijawle.-s, as a contempt of lourt, 
it does not follow that he is k^uil y of the misde- 
meanor charged in the impeachment; because 
the injury -tdl remans, whether ih s was an 
honest mistake o jndgmenior whether he acted 
with the guilty ntiiiuon charged in tlie im- 
peachment, una th it his guilty intention must 
be placed beyond doubt bef re you can lonvict 
him, bec.ai e the principlii of the criminal law is, 
that to doubt is tu ac qui . I insist, too, that this 
guilty imeiition is not to be inferred from :he 
alleged incorrectness 01 his judicial opinion, but 
must be satisfactorily proved Dy the evidence in 
the cause. 

The honorable manager, I humbly cone ive, 
then,wjs rather unfortunate in his illustrations 
from the cases of murder and forgery. He- did not 
perceive that ihe very terms in which he stated 
his proposition, involved th.tt Yery proo of in- 
tention, '.is a fact which he supposed the law 
■would raise by imp icatiou. 

"On tiie same subject on intention, I infer 
from a remark made by another of the honoia 
ble raanag-rs, (Mr. Starrs,; in une of those inci- 
dental deb tes on the ev dence. o:' which we 
have hud so many, that he thinks he may fai ly 
turn on the respjnd ;iit a prini iple urged by 
him against Mr awle s in his defense before 
theHoiise of Itepesentatives to Wit: 'hat 
every uuiu is presumed to intend th ^ natural 
conseque ces oi hts own actions. Nothing is 
more true than this principle; but the Jionora- 
blemunagir ii.ust, i think, have lud asid' his 
usual discrimination, wiien he supposea it ap- 
plii-aide to tlieuues ion now befo e us It re- 
lates to the physical, practical consequences of 
an action wiiich, in the ordin.iry cotirs,e of na- 
ture, musi follow it There a man is always 
presumed to Intend. Y' i, his m ralguiltorin- 
nocence may remain unsettled and always do 
remain unsettled, unless the consiquences be 
such as could have beenconnec.ed only with a 
guilty intention. 

" The m in who, in open day, presents a gun 
at the bre St o a other, which he knows to be 
loaded, ;ind discharges it, must be presumed to 
have intended to kill him, because ihitisth 
natura' coijS! quence of his act. But the moral 
and legal guilt or umo ence of the act remains 
lo be settled by other considerations. Th. man 
•whom he lias slam may have bi en an assassin 
■who had come to murder tiim, or a roliber who 
was in the act of breaking < pen h,s hous to 
plunder him, or J, criminal who was resi-^ting 
to death the service of a process; in ah which 
cases, thoujfh he did not intend the natunl con- 
sequence of his own act, he is held excused or 



justified by the law. Hunters, in the imper- 
fect light of the itawn, or of the twilight, have 
been k' own to draw the trigger on eai h other, 
in the forest, under a mistake that i hey were 
the game of which they were mut ally in pur- 
suit, and dea'h, thenatuial 'dnsequence, has 
follow- d; yet ther.- his been no legal or moral 
I'uilt n the act, liecaue theie was no such in- 
tention The respondent, in his defuse before 
the M luseof Representatives, a pled the prin- 
ciple thus: the iiitural ffect of sucn a Miblica- 
tion as thLit of Mr Lawles-. was to bring the 
C)urt into open disgrace and con tern -t before 
the pui. lie, anil to prejudice the minds of the 
ciimmu ity with regar t to causi s st' I pending 
in court; and ihe-ebemg the natural conse- 
quences of such nuhlication, Mr Lawle s must 
be supposed to have intended them because 
every man i^ supnosed to intend the obvi- 
ous and natural contit quence of Ids own actions. 
The urgiiment, I humbly apprehend, was per- 
fectly fair, and Hxed, in that c se, the guilt of 
Mr. I. awiess; because those consequenc s were 
such as could be eonmcted only with a guilty 
purpose; tiiev were moral consequences and 
guilty in themselves. 

" But let us see with what candor the orinci- 
citde can be turned on Juiige Peck, ti) the end 
. f fixing gnilton him? The natural consequence 
ot his order to impri on Lawless lor twenty- 
tour h urs, was that he should esoi prisoned; 
he is, here ore, to be presumed to have intended 
that dnsequence. The natural consequence of 
his nrder ot susiension from practie.e lor eigh- 
teen m nhs, was that he should be so>uspend- 
eil. aiifi he is theref ire to be presumed to have 
int uded that consequence. This, i a mit. He 
intended that he should be fhipri-oned ; he in- 
tended that he should be suspendeil f'om prac- 
t ce But this is not the intenion ch rgeu iu 
the impeachment, and which is here in ques- 
tion. The int nt on here ci.arjed is wrongfully 
and unjustly to imprison and injure lim under 
color of law; and mile s intentional wring and 
inuistii e can be preicUed of every order of 
imprisonment and suspension, as a natural con- 
sequence, I do not see how they can be pridi- 
ca ed of this oroer. Does the honorable mana- 
ger intend to argue that the Judge had no law- 
ful authority to pass the sentence which he did; 
thit the imprisonment and su^p. u ion being 
wit out authority, were wrongiul and oppres- 
sive; and that the wrongiuraiul oppres-ivu im- 
prisonment and suspension be ng the natural 
co.isequeuces of the Judge's unlawlul :ict, must 
be presumed to have been iniend'd by him? 
Uoiis not the gentleman perceive that by this 
process of reasoning he is begging ihe whole 
que>tion; firsf, the. Judge actetl without the au- 
lhorit\ of law; secondly, that he 1 new he was 
acting without the authority of law; lor it is 
iiidy by the a-sump'ion of both these positions, 
thiit he can arrive at his consequence ol an in- 
tention wront^fully ami unjustly to oppress and 
injtire. For he surely does not mean 1 1 contend 
that every unlawful imprisonnienr flows from 
intentional oppression in the Judge who has or- 
deied it. 

"How often has ball been refused ihrotigli 
the mistakes of judges, when it ought to have 
been all wed; and tlie consequence invariably 
is an u lawful inprisoument? flow oben liave 
men been discharged on habens corpus, who 
have b en wrongfuily imprisoned ttiioi gh the 
mistake of juilg'S? Woul i the gen leman ap- 
ply his arguuicnt to sueh case? -■ ould he 
say tuat wrong, opiiression, and injustice are 
the nitural consequences of such m stakes: 
and that as every nian is presaumd lo intend 
tie natural consequences of his own actions, 
thereiore tho-e judges (admitted to have acted 
under an honest mistake of their duty) must be 
presumed to have intended to wrong oppress 
and injure the man whom, they liave sen- 
tenced? 

"Does he not perceive hat by such an argu- 



145 



ment, he would be maintaining a solecism in 
terms, iinil that the whole iallacy arises trom 
the raisiipplicaiioii of a principle "ptrt'ecily true 
and souiiil in itselt? Everyman must, infleed, 
be presunitil to intend the natural and practi- 
cal coiiSKjuenees of his nwn actions. 

"But the moral char.icter of his actions takes 
its color from his mind; and the act, whatever 
i' may be, does not make him guilty, unless his 
mind be guilty. If the consequences which ht- 
aims to produce, are necessarily immoral in 
themS' Ives, his mind is guilty, and imparts its 
guilt to his actions. 

"But if intending to do right, he does, 
through mistake what is wrong, wnat kind of 
logic IS that, which wauld seek to fasten upon 
him by induction, a guilty iuteution against the 
very terms of the hypothesis? Altlioui;h it he 
true, then, ihat every man is to fe presumed to 
intend the natural con-equeuces of his own ac- 
tions, and tlierefore that Judse Peck must be 
]*resnme t to have intended that Mr. Lawless 
should ht' imprisoned and suspended from prac- 
tice, ii does n< t lollow that he ini ended wrong- 
fully and unjustly to oppress and injure hun; 
because wioug and injusiiceare not the natural 
con-equences of the honest itehvcry of an offi- 
cial opinion by a judge. The very rea^on why 
a miiu is pie;:uuied to intend the natural conse- 
quence of his own actions and is held responsi- 
ble for them, is because he must have foreseen 
those consequences at the time of his action. 
But can a judge be presumed to foresee that 
wrong a'.id injustice wilt follow from his pro- 
nouncing an opinion, which he lionesily be 
lieves to "be a correct opinion and to he demand- 
ed by his ollieial duty ? the que-tion carries 
its own answer witli it, and la rly exposes, I 
conceive, tlie misapplications of this principle 
to the po'iit under consideration. 

" We are not now discussing the question of 
fact. Whether Juiige Peck erred or no in the 
expression of Ids opinioj, iind even if he did 
err, whet*:e his e: ror was so palpable tliat he 
must have I'een conscious of it, orwheiher the 
ease was attended with any circumstancae 
■which will justiiy this honorable court in pro- 
nouncing tin- respomleat guil:y of the intenti.in 
charged, will C'.ustitute a subsequent part of 
my iiiquii'y. We are now engaged in setting 
the preliminary principles ot tlie discussion, 
and lixing the true question b f .ire the court; 
and 1 ius.st that the guilty inteniiou charge I 
by the article of the impea'hment, i- an er-sen- 
tial part of thi- oflense, and must be cle.irly and 
distinctly made out by ihe proof before the 
honoratiTe malingers can call for the conviction 
of the icspoudent. 

"I in ist, further, that even if the honorable 
ra makers c uld succeed in proving that the 
Judge was noli warranted by the laws of t-e 
land, in punishing the publications of Mr. Law- 
less as a contempt, tho guilty intention would 
still remain to be proved. For I deny the jjropo- 
sition tiiat the law will annex, by implication, 
acrtmin.d intention to ever v opinion of ajuilge, 
■which is sh'iwn to be erron.ous. And, wiiile 1 
admit th;it every man is presumed to intend the 
natural consequences of his own actions bv- 
caiisehe must ii ive f ■re^een that they would 
lollow, 1 deny ihat the respondent is to be as- 
sumed to have intended wrongfully and unjust- 
ly to imprison, oppress ana injure Lukt- b,. 
Lawless, by the sentence which h" pronounced, 
because wrong and injustu e aiv not the natural 
consequences of a judicial opinion honestly ex- 
presseil, an I, therefore, could not have boeu 
lore^een by ttie respondent, when he pronounced 
that opinion, even altnough the opini jn may 
have I e in held to have been erroneous; and I 
contend, that even although the Judge should 
be shown to tiave act d erroneously in point oi 
law, (winch I confidenily beneve cannot be 
shown,) yet, unless the principles of the crim- 
inal lav tire to be, now ana here, or the first 
lime torn up and reversed, the Judge is to be 

10 



presumed to have a ted innocently and honest- 
Iv, until the contrary shdl be established by 
the proofs 

■'But, I And that I have not yet done with 
these pielimiary principles, for another of the 
honorable managers -(Mr. Wicklifl'e) has ad- 
vanced a proposition so novel, ana so directly 
conf.onteil by all the authorities, that had it 
not bein for some other things that I have 
heard in this case, I should have he.ird it with 
unmixed surprise. The honorable manager 
t'lls us that he cares not for piool' of intention; 
that he cai-es not whether the Judge acted 
wrung from ignorance or intention. That ig- 
norance of the law is no excuse in an unlearn- 
ed layman, much less in a le .rneii judge. Tha; 
every man is presumed to know the law. iind 
a. fortiori a judge, whose oliiee it is lo under- 
stand and administer the law. jf, therefoie, a 
judge, througlnguorance of the law, has done 
that which he had no power to do, he is iust as 
guilty in the eye of the law, as ii he had sin- 
i.ed intentijnaily against thj liglit of knowl- 
edge. 

"Then, according to this ijvocessof renso' ing, 
a mistake of che law by a judge is an impeacn- 
abie offense ! But is it possible that the honora- 
ble manager can mean to couteno that a judge 
is answe.'able, eiihtr civilly or criminally, for 
an error of judgment; tha' he can be either 
sued, indicted or impeached for such an error; 
if such be his meaning, he is in direct conflict 
wiih all the Huthoriiies on the subject. The 
question i» not anew one. It has been long 
since settle !, both in England and the Uniied 
States, and I am not aware that for many cen- 
turies any judae or advocate h is even by in- 
advertence, sauctiouoi!, or even countenanced 
the J o.-ition \( hich has been thrown out by the 
gentleman. From the reign of Edward Iil, to 
tne present day, the ciirruut of autiioi ities is so ■ 
clear and uniloim the other w ay, and establish, 
beyond controseisy, the prii.cple that the 
ju'i go of a court of record is not ansaeiabe, 
either civilly or criminally, for a mistake of 
judgement in his judicial character. 

Mr. East then read the fol owing from the 
argumcn of Li rd Erskine: 

"The sum anif substance, therefore, of the 
paragraph i^ only this— that an impeachment 
for error in judgment, is not consistent with 
the theory or the practice of the English Gov- 
ernment. So say i. 1 say without leterve, 
speaking merely in the absiract, and not nif, n- 
iug 40 ilecide upon the merits of Mr. Hat ting's 
cause, that an impeachment for an error in 
juiiginentis contrary lo the u hole spirit of Eng- 
lish crimiial ju-ti, e, which though not binding 
on the House of Commons, ougiu to be a guide 
in its pioceedings. I say, tbai the extraordinary 
jurisdiction of impeacnnnnt ought never to be 
assumed to expo^e error or to .scourge uiisfor- 
lunCj but, to hold up a terribb- example to cor- 
ruptioa and willful abuse ot auihority by e.xtra 
legal p;ius It pubiie, men aie always punished 
With due severity when the s.jiirce of tueir mis- 
conduct appears to h .ve been selfishly corrupt 
and criminal, the public can never suffer when 
their errors are treated with gentleness. From 
such protection to the magistrate, no man caa 
think lightly ol" the charge of magistracy itself, 
when h/ttes by the language of tfe saving 
judgment, that the only title to it is an honest 
andze.lous intention. If at this moment, gen- 
tlemen, or, inaeed, in any other in the whole 
course of our history, the people of England 
were to call upon every man in thi- impeaching 
House of Commons, who had given his voice 
on pill lie quest ons or acted Ln authority, civil 
or miliiary, to answer for the i sue of our coun- 
cils and our wars; and if honest, single inten- 
tions for the public service were lefustd aa 
answers to impeachments, we should have, 
many relations to mourn for, and many fritnds 
to deplore. 



146 



'^For iny own part, gentlemen, I feel, I liope, 
for iny country as much as any m:in ttjat in- 
habits it; but I would rather see it fall and be 
buried in its ruins than lend my voice to wound 
any minister, or other responsible per; on, how- 
ever unlorrunate, wlio hadfairlv ibl lowed the 
lisrht^ if his undorstanrting, and tie dictates 
of his con^cience for their preservation. 

"Gentlemen, this is no the ry o mine, it is 
thelsngu;tfjr>- of Er glish law, and the protec- 
tion which it aflord^ toeveiy man in oflice. 
from the highest to the lowest trust ot govern- 
ment 

'•In no one instuncf that can be named, for- 
eign oi- domistic, did the Couit of King's Bench 
ever interi os'i it-, extraordinary jurisdi-tion, 
bj^ inlormation, against a»y magistrate, for the 
widest depaiture Jrom the rul^ of his duty, 
without the iilaincst und clearest proof of cor- 
ruiition. To every such application, not so sup- 
poited the con,^tant auswer ha.s been : Go loa 
grand jury with your lomplaiut God forbid 
that a magistrate should sutler from an error 
in judgment, if i is purpose was honestly to 
discharsie hi«. trust. 

"We caiuiot stoii the ordinary course of jus- 
tice; but wlienever the coutthas discretion, 
such a magistrate is entitled t ) its prote, tion. 

"1 appeal to ihe noble .Tudg.', and to every 
man who hears me, for the truth and univer- 
sality of this poition. And it wotild be a 
strange solecism to assert, that in a ca'^e where 
the Supr-nie rourt ol crirn nal jusfice in the 
nation would refuse to interpcse an < xtraordi 
nary, though a bgal, juri^dictioo, on the prin- 
ciple that the ordnary executi<jn of tt e laws 
should never be txctetltd, but for the puuish- 
meniol malienanr >!uilt, thecommons, in their 
higher cap .' ity, g' owing out of tlie same con- 
stitution, sh uld reject that princip e, and 
hirt;tch tneni siill further by a jurisdiaion still 
more eccentric. 

"Many impeachments have taken place, Vie- 
cau,'-e the law could not ad» quately puni.^h the 
objects 01 them; but who ever heard of one be- 
ing set on foot because the law upon pi iuciiile 
would not puui-h tnem ? Many fmpeachments 
have been adopted for a higher example than a 
prosecutiOH ill the oidinMry courts, hut surely 
ntver lor a different example, 'he mater, 
therefore, iu the offensive par igrjph is not only 
an indisputable truth, but a tru h in the propa- 
gation of which all are concerned." 

I am now done, may it please the court, with 
reference to autlioriiies upon the question ol 
guilty intent, and what it i,-^ nece>sary to allese 
and prove, and have concluded that the inten- 
tienisthe main point acd gist of the action, 
and that the intention must be an irresistible 
infeience irom the acts or te-timony in the 
cause, and U there be a doubt leeoncilable. 
with nn innocent intention, then you cannot 
convict. 

I now come, may it please the court, to the 
question of law ou'the charges. 

The chai g' s involved in the first article of 
JBipeachmeut are: 

1st That " he, the said Thomas N. Frazier, 
judge as aforesaid, diil corruptly, wil 
fully, maliciously. feloniously, and with 
theiutentot cnnmittipg a breach of the privi- 
leges of said House, and with intent, i orruptly, 
■wilfully, malic oiisly and feloniously, ol de- 
feating a pie>ence ot a quoi um of said House, 
and to disrupt and breHk up the same, issue a 
writ-of habeas corpus." 

■2d, That said brazier, as Judge aforesaid, di I 
reluse \o acceji^baid return of saiM Heydt lo 
said writ, and did corruptly, wilU'iiUv malic- 
iously and teloidously issue an attachment 
against «a,id Heydt, Serxeant-at-aims, as afore- 
said, r.nd Older the Sheriff of Dwvidson county 
to reli a^e said V\ illiams from the lawful cus- 
toily of the House of Kepl•e^enti^t^ves. and 
thtjreby the sail I Thomas N. Frazier, as JmUe, 
was gitility I'f a high misdemeanor m his office.'' 



The charges involved in the second article o 
impeachment are : 

••He, the said Frazier, as Judge aforesaid, 
did willfu ly, maliciously and corruptly cause 
said Heydt. Serge»nt-at-arms, (he well know- 
ing that the said Hey. it was Segeant-at-arms 
of the said House,} to be arrested and brought 
before him, the said Frazier, Judge as afore- 
said, by •, he Shi rift" of Da id>on county, and 
did adjudge him. the said Heydt. Sergeant-at- 
ai ms as aforesaid, for an alleged contempt, of the 
court, of him, the said Frazier, Judge a^ afore- 
said, in ma;- ing the return to said writ of hiibeas 
corpus, mentioned in article first of the im- 
p>-achment. in the manner directed by the said 
House, by inflicting upon the ^aid Heydt. Ser- 
geant-ai-arms as aforesaid, a fine of ten d'dlars, 
more or less, and to be committed until paid, and. 
in this he was guilty of a high crime and mis- 
demeanor in hi> oflice of tJudge as aforesaid." 
The court wid see that both these ch trges in- 
volve both law and facts. 

The first question — and really the only ques- 
tion of law presented — is, whether Judge Fra- 
zier had the legal right to issue the writ of 
hab"as corpus and release the prisoner, Wil- 
liams. Jf he did. then he could not have done it 
•'corruptly, willfully and feloniously," for in 
order to have done it with these intents, he must 
have dune it against law, and Knowingly in vio- 
lation of the law. 

Now, this brings us to a consideration of the 
question of law, the question whether the pris- 
oner, Williams, was fllegally or unlawfully re- 
strained of his liberties; because if bis arrest 
and imprisonment were unlawful aiul illegal, 
then it will be admitted it was the duty oi any 
indge to whom he might have applied to release 
him. 

Can less than a quorum of the House of Eep- 
resentaiives order the arrest a* d iinprisonineiifc 
of one of the members because such member 
refu-es to attend the session'!' 

In the consideration of this question, we are 
freed from the neeessity of exan-iining with 
ni-'ety into the general powers and privileges of 
jiarliameiitary bodies, or what are the rights 
and powers of a number of members, le-s tTtiaa 
a quorum, either as regard themselves or their 
brother members, who may refuse to attend. 

By the constitution of the btate of ieunessee 
all "leg slaiive power is lodged in tne two 
Plonsts, known in our State as the Senate and 
iious('of liepres' ntatives. In oidertomakea 
law, the-e two Houses must conctir in it> pas- 
sage, otherwise 'tis no law, and binding ti.jon 
nobod}'— has no right ti> lie placed on the statute 
book, and no court could be called upon lo au- 
mmister it, and it would lie in contempt of no- 
body that any courtor citizen refused t.; recog- 
nize it. But"ju-t here we are met by the prose- 
cution with a question of law. They say the 
i-egislature is alone the judge of its action — 
that the judiciary have no righi to look to its 
journals in order to ascertain whether an en- 
actment receivtd a majority of the votes cast; 
Mhether the bill was properly and correctly en- 
rolled ; wbether it was signed by the .•Speakers, 
or in those States where it is required by the 
Governor; and to give application of this prin- 
ciple to this court ihey in>ist that Judge Fra- 
zier did njt have the legal right to enquire 
whether or not the resolutions ordering the ar- 
rest of Williams and others were pa>s.ed by a 
majority vote, or to enquire whether, at that 
time, there had assembled at the Capitol a quo- 
rum of the membe s. This woukl be an ex- 
ceedingly dangerous doctrine, if admitted to 
be correct. Because, under this rule, one de- 
partment of the government might be usurped 
in defiance of alt auihurity, and neither the ju- 
diciary or executive could enquire into it, and 
the life and liberties of the citizen passe i upon 
and legislated away without the power of rem- 
edy. If the judiciary coobi not -nqi ire iuto 
these questions, when a proper case was pre- 



147 



sentcd, what power could? Is it not better to 
allow the question to be pab.spd upon by the 
peai'elul moans the judiciary alTords than cm- 
pel the citizen to rexolutionarv means? Be- 
sides, the argument implies that one, tv^-o, 
three or any nnuii)er of ret mbers less than a 
quorum might meet at the Ctpit )1 and pass a 
resolution order ng the arrest and inipesich- 
ment of the other seventy or eighty me .bers, 
because if less than a quoium could d) these 
acts— we are permitted to siop short of any 
number — and one or two meinbers might meet, 
earh pass upon the other's certificate of election 
and qualification as members— create officers, 
Sergeant-at-Arms, etc.^and arrest all the re- 
mainder. This is the necessary result and in- 
evitable con-equenoe of the position contend* d 
for. It might be extended and presented to 
the court in many and various forms, which the 
solemnity and gravity of the occasion do not 
allow. 1 know that many eminent lawyers, 
without examining into the question, have 
thought otherwise, ami it Wuuld noc .letract 
from th'Mr reputation to have so held. Judge 
Harrison told you that he so thought until re- 
cently, when he had occasion to loofe into the 
question. But we will not content ourselves 
with reference to nncens <ie'e'l ofl'-hai'<i opin- 
ii'us of gentlemen, but look into the action of 
the courts ot other States and countries, lor it 
is to these we must look for light when our own 
decisions fad us. And I will ask the court to 
keep ill mind that the aiithoriiies I refer to re- 
late to the action oi both Houses of the Legis ■ 
ture. and not, as in this case, to one branch of 
the Geneial Assembly, btcause if any constitu- 
tional veil IS thrown over the acts of the I-egis- 
lature, beyond which the eye of he judiciary is 
tot permitted to penetrate, it would he an ex- 
tension of the doctrine, unwarranted by any 
decision with which I am acquai'ited To 
hold that this rule applied to o e branch or a 
part of the Legislature, ami to extend still fur- 
ther and maKe it apply to any numiier ot mem- 
bers less than a quorum of i ither house, would 
be to extend it beyond a safe credulity, and de- 
stroy the constitutional requirement in regard 
to majorities ai d two-thirds all together; and 
the very tssence of the constitution would he 
simmered away by con-truction The court, in 
the adjustment of private rights, have at all 
times, exercised the powers of pronouncing acts 
ot the General Asseinb'y regula-iy )iassed, un- 
constitutional and vo d. Our own boobs have 
many decisions of this character, and in other 
States the courts have looi^ed iiehind the au- 
thentication of an act, and invesiigate ' the 
point whether it was, in fact, what prima fa«i€ 
It appeared to be, a law. 

Mr East then read the loUowing, from the 14th 
Illinois Ke,iorts p.2 8: 

The constitutioQ contains the following pro- 
visions: Each House shall keep a journal of 
its proceedings. Art .3 sec. 13. On the final 
passage of all bills, the vote shall ))e liy ayes 
and noes, and shall be entered on the joiirnal; 
and no bill shall become a law without the con- 
currence of a majority oi all the members elect 
m each House. Art. 3, sec. -21. Every bili, 
having passed boih houses sh-Ul be signed by 
the Speakers oi their respective Houses. Art. 

3, sec. 23. Every hill which shall have passed 
the !>enate and House of Representatives sha 1. 
before it becomes a law, be piesented to the 
Governor; if he approve, he shall sign it. Art. 

4, sec. '21. A majority of all the members elect- 
ed to either branch of the Ge>ieral Asseni'ily 
must concur in the final passage of a bill. This 
is indispensahle to its becoming a law. Witli- 
out it thi=- act has no moi-e force than the paper 
upon which it is written. The vote must be 
tak>-n by :i.yes and no^ s The constitution pre 
scribes this as the test, by which to dt.'termine 
whether 1 he requisite number of members vote 
in the aflirmative. The vols must also oe en- 
tered on the journal. The office ot the journal 



is to record the proceedings of the House, 

and authenticate the same. It must appear on 
the face of the journal that the bill passed by a 
constiintionul majority. These diiections are 
clf-avly imperative. They are expressly en- 
joim d by the fundamental law, and cannot be 
disptnsi'i! wiih by the Eegislature. There are 
some other requirements equally essential, and 
that can no more be disregarded. A bill must 
be signe I by the SiJcaKers of both Houses, and 
then presented to the Governor for his action. 
II' he consents, his approval is indorsed on the 
bill; if he returns it with objections, it must 
again be passed through each House by a ma- 
jority of all its mi'inbers. Jf he does' not return 
the bill within len days, and the Legislature 
still rcniLiins in session, it becomes a law with- 
out his S'gnature. >'v hen an act has gone 
through all the forms of legislation, it is depos- 
ited in the ollice • f the Sccietaiy of Staie. R. 
S., ch. 96, sec 7. They all become records of his 
office, and may be certiiedas such under the 
seal of the .state. R. S., c.ap. 95, sec. 5. Ihe 
journals of the tn o Houses take the same direc- 
tion. K S., ch. 9H, sec. 8. The printeil statute 
book is evidence of the acts contained therein. 
R. s.. ch. 4 ', sec. 1. It is. however, not conclu- 
sive, but may be corrected bv the original ac's 
on file m the Secretary's oflice. It is compe- 
tent to go behind a printed statute, and show 
fiom the en rolled law thaiitis erroneouslypub- 
llshed Deliow vs. The People, 1 Denis, 9; Rex 
vs Ji.fl'iies, 1 Strange, 446; beei her vs. j-imes, 2 
Scam., 462 'I'hejournals of either branch of the 

egislature are the proper evidence of the ac- 
tion of that branch upon all ma' ters before it. 
1 Greenleaf on Evidence, sec. 490; Root vs. 
King, 7 Coweu, 613 ; Jones vs. Randall, Cow- 
per, 17 

In our opinion, it is clearly competent to show 
from the journals of either branch of the Leg- 
islature, that a Oirticlar act was not passed 
in the mode pr-.scri.'ied by tlie constituiiou, and 
thus defeat its 0|ieratiou altogether. The con- 
sti ution requires euh houseto keep a journal, 
au'l declare- that certain lacts, made essential 
to the passage of a law, shall be stated therein. 
If those facts are not set lorth, the conclusion 
is that they didn't transpire. The journal is 
made up under the immediate direction <.f the 
Huuse, and is presumed to contain a full and 
compute history of its proc edings. If a cer- 
tain act received the constitutional assent of the 
bidy, it will so appear on the faceof its journal. 
And when a contest urises ;is to wdiether tlie act 
was thus passed, the journal may be appea'el 
to to settle it. It is the evifieui-e of the action 
of the House, and by it the act must stand or 
fall. It certaiidy was not the intention of the 
frameis oi thecoustitutiin, thai the signatures 
of the Speakers and the Executive should fur- 
nish conclusive evidence of the passage of 
a taw. The presumption indeed is, th*t an 
act thus verified, beiame a law pursuant to 
tiie requirements of the constitution, but that 
presumption may be overthrown If the jour- 
nal is lost or destroyed, this presumiition will 
sustain the law, for it will be conteiuled that 
the proper entry was made on the journal. 
But when the journ d is in ex'Sience and it 
fads to show thit the act was passed in the 
moite ])rescribed by the constitution, the pre- 
sumption is overcome, aad the act must fall 
This view is sustained by adjudged cases. In 
the c seof lire State vs. McBiide, 4 Missouri 
30'., the court looiied into the journa's of the 
Legislature to ascertain whether a constitu- 
tional amendment, which had.been enrolled and 
declared to be a part of the constitution, was in 
fact ratided by the requisite number'of the 
members of the Legislature Jn Green vs 
G aves, 1 Doug., 3.51, thecoui t held on demurrer 
to declaration upon a note given to the iJank of 
Niles, that the bank had no legal existence be- 
cause the act under which it was < rgain'zed 
did not receive the assent of two thirds of the 



148 



members of the Legislature. See. also, Purdy 
YS. The People, 2 Hill. 31, and 4 Hill, 14. 

" The act in question w:is signed by the Speak 
ers of the two Hnuse-i, and it receive I tlie ;>s- 
sent of the executive. Prima fame, therefire, 
it be.'ani'' al.iw. But the journal of the House 
of Represeiitativs fails wholly to show that it 
was ever put up in its final pas age in that 
Hou^e; in other w nis, it doe* not appear thar 
it |ias-dd with the con -urrence of a majority of 
the memliers elect of that body. The act did 
not become a law in pursuance of the provi- 
sions of the constitution, and it is therefore, null 
and void." 

Then it has been held repeat dly that the 
signatures of the Speakers and Governor.^ 
are piesuni|itive evidence of the passage of 
the law, out the journals may le examined, 
and til original engrossmfnt of ttiC bill 
looked to, to ascertain whether the constitu- 
tional requ'remcnts hive been complied witti. 
People vs. Purdy, 2 Hill, N. Y. 31; UeBowvs. 
People, 1 Denio, 9; Turley vs. City of Logan, 17; 
111,, 151; Piescot vs, 111. Canal, 19 111., 324, 
Spangler v,-. Jacohy, 14 III. 297; Itex VS. Jef- 
fries, 1 Sts. 4i(>, 'I Scam. 4()2; 4 Mo., S(>3; 7 xMd., 
(81; Suiervisors vs Heenan, 2 Minn., 350; 
Hethengion vs. Russell, 10 Iowa, 14'); 9 Iowa 
30 and lii4; 18 Ga.. 65; 19 Iowa Hi2; 22 Penn., 
376; Fowler vs. Pierce, 2 Cal . 16 J; (eleven 
State-) Dew vs. Cunningham, 28 Ala , 46(5. 

It h.is been said that ihe cnurt b' low had no 
power to look int > the jnurnals to ascertain 
whtthei- a quorum w-s present. I understand 
Judge Harison's testimony to he that in the 
argiini nt before Judge Frazier it was admited 
that there was not a quorum present, hut the 
legal right t> look at the journals was denied. 

t'he^e decisions ai)0ve reierred to and many 
others go to this extent, that although ihe en- 
actment of laws is t!ie province of the L' gisla- 
ture, yet it is for ti e courts to deiermine 
whi ther the Legii-lature has, in fact, constitu- 
tionally enacted them. The cunent and re- 
spectability of these (lecisi'.ns are overwhelm- 
ing, when put against the off-haud opinion of 
lawyers — are solemn decisions upon grave ques- 
tions of law, and aiiply not only to one House 
of the General A-semhy, but the entire Legis- 
lature. The case before the court relates lo 
le^s ^til' — the action of less than a quorum, 
which action involved seri >us consequfuces to 
two citizens; involve the question of their lib- 
erty. 

Now, it is true, as a jreneral proposition, that 
where authority is conlerred upon several or 
many persons, to be exercised, aM the persons 
authorized and empowered to act must be pres- 
ent in order to a valid exercise of the power. 
If Ics^s than the number required to be present, 
it is nn legal and valid J'ct, it b^nils nobody, al- 
though the formalities and ceremonies require I 
may nave been gone through with Now, if this 
principle, so universal in the law, was strictly 
applied to legislative proceedings, and e^ch 
member was required to lie present and partioi- 
pat : in order to the doing of any valid act, it 
would be extreniidy inconvenient in general, 
and, as the greater number of our legislative 
Assemblies are bodies of a considerable size, 
compost dol many members, these proceedings 
would be wholly mprac icahle Hince, it has 
been found necessary, in the constiuitioii of 
legislative assemblies, to make them an excep- 
tion to the gener.ii principle above slat d, and 
to allow a isin.ilier number than the whole of 
each House to transact business ;ind to do valid 
act-; but it will be apparent to the court that 
this exceptiiin is made indispensible from the 
necessity ef the case, but does not change the 
theory, or thi reby ex mpt members for non- 
attendance. 

It was necessary, then fore, as all could not 
possibly ke in atiendance and participate in 
each ai;t or proceeding, that a specified number 
of members should meet and be present, and 



this specified number have all the power and 
auihority to do any and all the acts that the 
whole might legally do. Lei<s than this speci- 
fied number lould do none of them, otherwise 
it were u-eless tu spec fy any number. 

ihis suicified lumber is called a quorum, 
and is legulated by constitutional provision, 
and in the dirierent States this particular num- 
ber is lelt to difl'erent regulations. In Tennes- 
see this number is ascertained by section 11 of 
the 2 1 artic'e of the constitution, whicli de- 
clares that "two-thirds of each House shall 
constitute a quoi uin lo do business." t^f course 
the '■ business" ri f erred to necessarily means 
all the business that the entire Legislature, 
every member being p-esent, could constitu- 
tioiia.ly do, and any enaciment passed iiy this 
body becomes the law, if it be not contrary to 
the constitution which tyct is leit to the courts 
to di terndue. Now this quorum, two-t:iirds of 
each house, is the laNv-inaking power of the 
State. There is none other— there could safely 
be none othi r — and tlieir acts can be looked into 
alone by the courts of the country, and by the 
succeeding Legislature. 

Now, until this quorum — this two thirds of 
each House — as declared by the constitution, 
aisemhlea, \\\er& is no I egislature— there is no 
liw-making pov.er. Having thus far looked 
into the organization of our legislative assem- 
blies, and ascertained, as it would ;be impractic- 
able to procure the aitendance of eich mem- 
ber, whut proportional part is vesti d with the 
power of the whole, let us now ascertain what 
acts our constitution authorizes and permits a 
nu'jiber less than a quorum to do. It will 
readily be admitted that it can make no laws; 
and it is also evident that it can do nothing 
unless especially authorized by the constitu- 
tion, or by some law previously enacted. 
While our constitution undertakes to declare 
tliat a qu ruru ean and may do all ihings neces- 
sary antl constitutional, in the waj' of lei;is- 
1 ting, and can in fact do all ihings not p'O- 
hibited by the Constiiution of the St ite or the 
laws and treaties of the United States, it has 
not left undefined tne powers of a "smaller 
number than a quorum," but declares in section 
11, article 2d: "but a smaller numler may ad- 
journ from day to aay and may be atUhorized 
by law to c mpel the aotendauce of absent mem- 
bers." 

I concede that the proper construction of this 
section invcdv' s the entire question of law pre- 
sented for the decision of this court, 

A similar section lo the above is put into the 
constitution of all the States of the Union. 
The cunstltuiion ot the United States provides 
thata smaller number tliaii aquouin ' maybe 
autnorized to compel the attendance of absent 
members in such manner, and under such pen- 
a'ties as eacii ilou-e may provide." ihis 
cliuse leaves the whole question in the hands of 
aach Bouse, both as to tne "uiawner ' and the 
"penalty," and whatever rule each House may 
pa s upon the subjict, or whatever order each 
House may make, that rule and ttiat order can 
be enforc d by a "smaller nnmber than a quo- 
rum." If neither House has made any rule or 
order upon the suliject, then there would be no 
power given to be exercised. We cannot hope 
to find any precedent arising from this quarter 
th n that will enable us lo arrive at the mean- 
ing and intent ot our own constitution. 

The constitution of most of the States follow 
the constitution ol tne United States in this re- 
spect, and lodge the power of compelling ab- 
sent members to attend in each House. 

The constitution of Pennsylvania provides 
that a smaller number than a quorum "may be 
authorized by law to compel the atiendance of 
absent meiubers, in such manner and under 
such penalties as may be prescribed " Ken- 
tucky and Ohio have similar clauses to Penn- 
sylvania. Louisiana has a similar piovision, 
but uses the word "shall" instead of 'may," 



149 



making the sentence read, "shall be authorized 
by law," etc. etc. Now, the constitution oi 
Tennessee 'S the same as that of Pennsylvania, 
Kentucky and Ohio, as far as it goes in this re- 
spect. 

Now, if we can find what construction courts 
or distinguished law writers h :ve put u|ion this 
claiise in our constitution, and similar clause- 
in the constitui ions of other St .tes, then we shail 
have put ourselve-, as it were, in the shoe , of 
the ri spoiidenc, for it v. as to ihese law writers 
he had to looic in making u i his judgment or 
opinion upon the question; and ir, in foUuw- 
iug tliem, he has comniitttd an error and 
crime that demamls his impeachment, how in- 
famous imisC thev lie, and your ilenuticiation of 
him must necessarily, in theory, extend to them 
as law writers ami commentators to whom the 
youth of the country are re em d, and whose 
books are i>laced in th hiinds of every student 
of law. One of Mussachusetts' mobC distin- 

fuished scholars, and Law K,' porter of the 
tate, and cotnmentut ir, in his work i>n the Law 
of Ligi-Litive Assemblies, section 257, page 9», 
lelerring to this clause in the Cfinstitutiou if 
the State of Ti-nne-see, says: -'(Jlauses of this 
description authorize the Le^rislatuies of the 
States lu which they prevad, to provide before- 
hand, by law, that each legisla'iive assembly, 
though containing les^ than a quorum, may 
compel thi3 attendance of lt^ members; and the 
authority may as well be exercised, so as to re- 
late tjthe tirst :i>sembli. g, as alter the con?ti- 
lut'on of the assemi'ly. \\ hen Mus i-- the case, 
if the requisite number do not appeur, th' se 
who do may. of course, resort to tlie measures 
provided by law, to compel the attendance of 
abient 'nembers." 

Ag;iiu, at section 255, pageGS, he says: "If on 
the day appointed ijv the meeting, the reqiasife 
number of memiiers is not present, those who 
attend can only adjourn uniil the next day, and 
so on from d;iy to day. until the rfqui>ite num- 
ber appears, or a prorogation or dissolution 
takes place; nnl-ss a s. nailer numbm- than a 
quorum «Ao«^ be expre^Ay authorized, \X) com- 
pel the attendance of absent members." 

Hei e, then, may it pleae the court, w^e pre- 
sent the opinion of an able lawyer, a distin- 
guished law writer, whose booli has been ap- 
pealed to throaghotuthis proceeiling more than 
once by the prosecution, and to which all have 
submitted. 

Can the gentlemen on the other side produce 
an authoriiy of any respectability, wiiatever, 
giving an a iverse construetion of ihis clause? 
if not, then we have at le ist, the wei^ihto: au- 
thority and the advantage of pre edtnt. 

When yuu look Co the clause itself, and read 
it. cinyo'u give auv other construction to it? 
Tnrow it down before an hundreii l;iwyer,->or 
intelligent men, and every one will re id and 
coubtrue it the same way. But suppose they 
should difier, and fifty should construe it one 
way and flity the other way. Are either lifty 
to lie iield as criminals and scoumlrels? 

But the gentleiue i tell us that the matter upon 
which nib Honor, Judge Krazier, was calUa ;o 
give a judicial opinion, was a matter of vast 
moment and deep concern; that in more than 
an or linary degree it invoUel grave conse- 
quences. So be it. And was it not so regarded 
by him? Were not able and le.imed counsel 
heard hy hini with patient anxiety? Were any 
lefused an audience who desited to speak? 
Was not his own opinion carefully consiiiei el 
and preparer!? Was there manifested by him 
any vv;int of gravity or seriousness? lie had 
notmaiie ihe lawsuit, but was /orceti to decide 
it. He had not made the biw, but was fori.ed 
to declare it as he houe-jtly believed it to be 

A citizen of the State — une, too, whom the 
proof shows was not whoUv unwoithy, but 
who for four years of war had borne himself 
as a soldier — appealed to a court of the State, 
alleging that he was illegally deprived of his 



liberty, that unlawful restraints were put upon 
him, that he hid b.en stricken down, and now 
begged an intercession in behalf of his personal 
liberty of one of the courts, to establish which 
he had borne a sol ier's fortune and t iken a 
soldier's fate. 

What a mean and contemptible thine Judge 
Frazeir must have been had he refused to hear 
this iietiiion. How unwoithy (obetriisted with 
an office the functions andp6v\ ers of which are 
to protect ihe citizen 

f lad he turned pa'e and quailed before any 
anthiray, however great, however hold ;.nd 
iiefiant, from a dischargeot his duties as an offi- 
cer, he had been worthy of eternal inlam> and 
disgrace. 

I know full well that Ihe power is lodged in 
your haods by the con-tituiion to strike this 
man's name from ihe ro 1 ol the officers oi the 
State as as an unwoithy servant. I know, too, 
that you can ilo so unquestioned by any, and 
that your decision, be it ju&t r unjust, mut 
stand through all time, lo eour honor or your 
shame. You are no less on tii-1 than he is. 

Ke.id for yourselves that clause in the consti- 
tution of the Slate which defines ihe powers and 
duties of less t an a qnonim. "to ad'ourn from 
day to day. and may be au'ho^ized by law to 
compel tlie atiend.ince oi abbcnt members." 
Why did the framers of our constitution insert 
tne expression, "mav be authorized by Uw," if 
it means nothing? If by the "hish and indis- 
putable'' privi eges of Loids and Coiinnonei's 
of England, all le.i!islat!ve bodies had this 
liower, and could call it into existence at any 
time, why dil our failiers, m onr cons itution, 
in-ert this elanse? What fdly, to have under- 
taken to give an aiitliorii) and it P'.werwh ch 
all legilacive assemblies, as is contender!, al- 
ways had 

I suppose that the people of the State of Ten- 
nessee, a State with a written, well detined con- 
stitutiiin, will le rn with surprise thai ilieir 
rights, powers, and duties are not to be tle- 
rived from our own constitution, but to be as- 
ce tained by a 1 ng and laljoii us rese iich of 
the mus y tomes of the House of '. ords; and 
that the privileges and powers of legislative 
bodies are not to i.e 'cribiied, cabined, aid con- 
fine i" to our own constitutional restri tions 
and sateguards as esia';lislied by its wise fra- 
Hiers; but like the Nile, their great source is 
hid a«ay irom menial sight, and lies in bedded 
in the 'high and indispmaile lights and privi- 
leges" of the faithlul Lords and Commoners of 
her Maje-ty. Such, lortunataiy. has noi here- 
to'ore been regarded as SI ited to the present 
dispensation, an i Ids Honor. Chief Justice 
Shaw, of Massachus tts. aided by his associ- 
ates. Mete If Dewey and Hoar, on the occa- 
sion of the petit on tor a habeas corpus of Geo. 
P. Bunhum, a citizen who had been conuuited 
to arrest and iir,prisonmeiit by a resolution of 
the House of K pres ntaiives on the warrant 
of the Speaker, for a (Ontempt of the House, 
declared the law to be qui e ihe contrary as 
contended here, in thiis reinaikable and perti- 
nent language: "The House of liepresenta- 
fives is noi tne find judge or its own powers 
and priv leges in cases in which the rights 
and liberties of the citizen arc con- 
cerned, but the legality of its action 
maj' be examined and determined 
by this court. That House is not the Legisla- 
ture, but only apart ot it, and is therefore sub- 
ject, in its action, to the laws in common with 
a 1 other b idies, officers aini tribiina s within 
the < ommonwea'th. Especially is it competent 
and proper tor this court, to consider whether 
its proceedings are in conformity with the con- 
stitution and laws, because, living under a 
written con tituiion, no bi aiich or department 
of the government is supreie; and it is the 
province an 1 duty of the judicial departmeit 
to determine, in cases regularly brought before 
them, whether the powers of any branch o. he 



150 



government, and even those of the Legislature. I Can any party fall itself the State? I know 
in the enacfnient of laws, have been exercised that it is the cant of those in power, and it is a 



in coiilbnriity w th the constitution, and it they 
have not been, to treat iheir acts as null and 
veil I " auch lan^uag ■ of wisdom and ttiought, 
refined and [jtivitied— in the American crucible 
of liberty— is the langu.ige of the constitution, 
o*' organic law, n'lto undefineil or undeflna 
bie 'high and indisiauable jjrivileges," and 
chal'enges tl e admiration ot his countrymen. 

The government I appr bend, is s\ipi>orted 
by thiee iudepenitent pillars, the leg.s'ative. 
the ex cntive and juditial, ea^h co-ordinati^; 
and .sUould one b"" plucked aw:iy the entire fab- 
ric must tiim'de into ruins. The jud ci iry is 
the ci nter pidur, and the support of each oi the 
others, by cheeking boh On thi- cue fide is 
tne swonl— on theothiir the purse. The judi- 
ciary his no inlieientc ip icity to defend itse't — 
its incidental supuort comes from <.ne or ' oth 
of th other dp irments, but it« <hiet support 
isthehi;arts of the citiz>ns. The judiciary has 
no victims sav.' those the law maUes. Along 
its pith are i-een no levensres; no passions and 
antipa hie — its couise s not marked with an 
!n'irdin;ite ambition, because t is iica'able of 
aggr.-ssion. The gre it a .d the small, the sov- 
erei:.:n Mnd the suiject, should a i e bow at 
the shrine of.yistice. Hitherto the judiciary 
have noc been t rrified by tb • piwi"-.i of t le ex- 
ecutive, and have dared to juilge between the 
humb est citizea and the President 

The safety of the citizen and the State 'lo- 
mands that the power be lodged s.niiewliere to 
'ieclaiean unconstitutional law void Ofwnat 
importance is iij to say tii,,t one bianchof the 
Legisluture is la-ohi ited from doing cert in 
act^, if no legtimaie authority exi>ts in the 
countrv to decide wh' ther the act r!one is a pro- 
hibi ed act? Whaccons< quence vvould follow if 
the Legislature, or t ither of the Houses, had the 
exclusive rig^t to decide their own powers over 
the pro erty and li e I r liberty of t've citizen? 
The principle a mitted, no constitut on re- 
mali'S, but ihe Legislature liecomes ab.-ohite 
and omin potent, if no one is left to jmlge, why 
talk to it > f transgres-in J i s poweis? If it is 
treaion and disloya'ty to resist it, or even to m 
quire into its powers, and that, io>, wh' n a cit- 
izen eomplains iha' his lib rty has been irjm- 
pled un'ler foot, then awiiy « ith constitutional 
governments, ai d let us "t^row th s c>mpais 
overboard and tri.st tothe winds and the waves. 
Are our judges to be removed in disgrace, and a 
mor al bl jw given to one branch of the govern- 
ment at the instiga'ion of another and rival de- 
partmeut, because tnese judges hear with pa- 
tience, iiid decide according to the honest dic- 
ta,t< s of their understanding, the law and the 
facts of a case involving on one h.and tne rights 
• of the citizen, and incidental to this the 
power- of o. e branch o: the General Assem- 
bly? Is ev ry jud«e to he arraigned belore 
this tribunal, and pnrsuerl with i. llamaia- 
tory appeals to iia-iy passions, becausi^ in 
the honest discharge oi his iiuties he has made 
a decision upon the rights and liherties of a cit- 
izen, the eft'cct of which was to inll^ite with 
h 'pe, oneof the nianv political organization^ 
•\vitn which the cou try at ail times, has been 
cursed, and he dec aed to be under the do- 
niiriion of a party spirit he. ause he accidei.t of 
thelaw. wh cli he de- 1 ired was conceived t) 
be injurious to some other political organiza- 
tion» Is there or should there b- in th ; -tate 
any act of the L' gislaiure or of either Hou.-e 
01 the Gineral Assembly or any political or- 
ganization, the leg lity ot which may not be 
1 quired into by the jiidiciarv, wheu such act 
or organizat on is brought before the eourt on a 
legitimate proc( e ling and at ihe instance of a 
citizen who claims to be oppressed tncreby? 

Are we to be told that the effect of the de- 
cision of Judgi' K razier, was against the sense 
of a diinin nt oaiiy in tiie State, and th'Tebv 
imperiled noc only that party, but the State? 



species of patriotism that is pardonable to call 
themselves "the State." We have witnessed 
examples of this kind at home and abroa'l. 
How rapidly have viarties and political organi- 
zations arisen, ruled for a time, and passed 
awMy? The sun of Federalism once rose over 
this nation, and set never to rise agnin— better 
or worse men ilian themselves in tJieir time, 
thrust them from power. Republican, 
democrat. Whig, and Know Nothing, have 
each liad the r day — to their country's glo- 
ry or their countiy's shame, and each in turn 
liad Hrrogated ti itself the name of the nation. 
At onetime in France, Brissat called himself 
the naiion— th'n Robespeire, Barriere. Talien. 
lionaparte, and tinally, Louis Phiilippe; but 
their dreams were soon di&sipated tinder he in- 
scrutable but mysterious workings of Provi- 
ilence What ha- happened to others, all must 
be liable to. The judiciary may have its ene- 
mies, but in all lime to come it will hive also 
its 'riends. The par y ot to-day impeitches a 
judge for a cause which ihe party of to-morrow 
ma-' laud, and then the judiciary is placed be- 
tween two cro^s tires, and ma'te subservient to 
ihe will of the dominant powers The judge is 
no longer the mouth-piece and organ of the 
law, but a sycophant to p^wer and a trimmer 
be: ween the dominant f^.ctions, and must stand 
in aweof oltlcial uuthority. 

nuinan wisdom has never devised, or philoso- 
phy taught, any check upon power wherever 
lodged, any preservative to a limitLcl constitu- 
tion, or any sale-giurds to personal liberty or 
the rigtits of individuals, espeiia ly of the poor 
and the weak, compiirable to an independent ju- 
di iary. In countries i lessed with written con- 
stitutions, with limit,ations upon the powers of 
the more popular and turbulent d'partments 
thejudiciary is made the depository and inter- 
pieter, the guardian and priest, of these oracles 
of ireedoin, and thes"^ written constitutions- 
frail paper checks— are ''converted into ram- 
pans of adamant, and hurl back into their 
pr per channel the boiling waters of faction, 
even as the rock repels the raging sea." 

I am lit a loss, Mr. President, to ascertain un- 
der what degree of dominion to a party >pirit a 
judge must be to, become corrupt in otlice. I 
suppose every man is more or le-is under the in- 
fluence of society; how or wherefore, he nor 
anv one else, could • ver tell I suppose the 
heated partisan becomes sometimes su' jected to 
the infl enoe of the opposition, and in h s fright, 
felt at such times, imagines dangers which 
couid find a lodgement only in a leveiish fan- 
cy. To such a man, goaded by his passion, 
"Trifli s light as air, are contirmatious. 
Strong as proof of holy writ." 
If such a man Could vdnly imagine himself 
thfi State, hewouldstartat every noise; in every 
picture "fear a painted devil," aud to his 
"slumbry iigita'iou" the dumb pillows won d 
whisper of 'conspiracies," ana aiouse his "val- 
iant fury." 

The proof shows that Pleasant Williams was 
a cit.zen I f Carter county and was elected to 
the Legislature of the Siate. The confidence 
ol hi- constituency was based, in all prob..bility, 
upon the fact tha'. h - had been a sold er in the 
Fed> ral army, and as such had won the confi- 
dence imd m rited the appro'ai ion of his fel- 
low citizens. His loyalty is beyond question. 
What higher test could his countrv men de- 
niami than four years exposure to the • hames 
of war? Who of us, his judsrcs. defenders and 
ac'UsiTS. can present higher claims to loyalty 
or better evidence of devotion to our country? 
Is this man's patrotism t > be tested mid mar- 
re 1 by the opinions of witnesses who never saw 
a tent dfiehl or heard a cannon's roar, but re- 
mained in their homes until he ami such as he, 
once more waved over them the flag ol Iheir 



151 



country? Who had abetter right to flomaml, 
not bes, of the courts, that his liberties be not 
restra ne<l or taken from him. s.ive l)y tlie < leur- 
est and most unquesyon:ible law oi tlie landV 
And this man is to be written down as a " con- 
spirator " Mgain.-t the peace, quietude and gov- 
ernrai-nt of hi> State. 

What hot, haste he manifested to und)the 
vroililorthe consummation of whiet> he had 
so recently offered his life; anil vonderfni that 
this vast conspiracy, to which counsel for' i he 
prosecution have so f ften addnssed them- 
se.Tes, .'nd hrousiht beioie the court. w»re 
comjjosed of these incongruous el'nifuts — of 
Federal and Confederate soldiers— ern they had 
laid aside the harness of war; a C()n-;piracy 
which, in the language oi the prosecution, 
couUl bo gathered irom the pul)U'- journals, 
seen in the taces ofthe raultitu !e held it "cau- 
cuses"' in a public law office, and unawares it 
impressed itself upon one of the judges of 
the Stat<.', notwithstanding an honest desire on 
his p'lrt to do his duty. That many persons op- 
posed many of the enactments ofthe Lesiibla- 
ture iherecanbe no doubt. Thic mtny all 
over the land opposed the proposed amend- 
ments to the constitution, is also true; but to 
blend in one body those cpposed to many laws 
enacted, and those opposeU to the adoption of 
the constitutional amcndiiieut with those who 
wished to see ihe Legislature broken u|), is un- 
just and is a slander upon many classes of the 
people- 
Certainly the court would not condemn the 
defendant because there were some people 
who, in their op(>05ition to the constitutional 
amendment, resorted to the extreme men^ureof 
defea ing a quorum in the House of Representa- 
tives and in the discharge of his otTi ial duties, 
not sought by bim but forced ui on 
him. lie did an act whic'i inadvertently 
SM'eiled the hopes or the-e extreme nn-n. To 
see and l;now Judge Frazier, as he was .ind 
felt during the pendency of the habeas corpus, 
read the evidence of Judge Lea. Did he re- 
gard himself as invited to join ;> conspiracy 
■\vlieu Judge Frazier, with fearful interest and 
anxiety, talked to him; or did he see corruption 
in the defendant, or so much as a personal sym- 
pathy for tne petitioners, or their cause? Did 
he know the dufendent well enough to furin an 
opiniDn of the chara ter ami intention of this 
iuteriiew? He swears he had kni,)wn him for 
twenty- seven years, and ad is his voice to that 
of all o'hers who have spoken on the subject, 
that he is and was a pure honest and upriglit 
man, a good citizen, ana a cunserva'ive judge. 
Is there any one so judicially blind, so mad 
with passion, so filled with hatred that consid 
eration of this character ai'ouses no einot on of 
his l>etter nature? What are a man's princi 
pies? From wh't are they to be inferred? Are 
theyto be found in the newspapers, or the plat- 
feria of a party? Platfoims prep ired tuo often 
by a drunken commiitef, opinions at occasional 
bounty meetings on party measure-, these are 
not deserving the uime of piinciples— princi- 
p'es are not manufactured by political erguii- 
za'ions and dealt out by committees. A man's 
principles ai'e discoverable from the act ions of 
his whole life 

Has he been just with his nei hbors? Has he 
tept his word? Does he love his (v untry? Huw 
did he stand in the day of her anguish? Asa 
judge, when clothed with power how w:is he 
towanl his subordinates. Tyrannical and unjust, 
or mild and firm? How was he in the full of 
power? Did he shrink throusjh persori;d consid- 
ecatjons from what he believed to be his duty? 
What do all classes, cree's and condition- who 
have come in cmtact with him as a man and 
judge, say of him? Are there no principles, no 
guarantees in these — trudi, coiiiage. ju-tice 
and patriotism? Can newspaieis or committees 
on platforms manufacture th'se, or are these 
■virtues to be measured by the same plummet 



with whch you would sound a county conven- 
'ion? Who of all the witnesses, has stated that, 
(roni the earliest life of Judge Frazier until his 
hair has grown white with age. that his reputa- 
tion was ever stained even with the breath of 
calumny and slander? Who of all the citizens 
ofthe State cou'd have, in times like these, so 
crowded that witness stand with so many wit- 
nesses, of all degrees of intelligence s^nd politi- 
cal c midexion. each swelling i he vo ume of 
hi- good name? His character and you-s are to- 
day put in the seal*!, embodied in" hi-to y, and 
all future time will weii'h each Impart alfy ; for 
your character for jusuce and impart ali'ty is 
no b ss involved in the record thau his, for cor- 
ruption in office. 

ARGUMENT OF JUDGE PATTERSON. 

Judge N. A. Patterson then made the fol- 
lowing argument for the prosecution on the 
part ofthe State: 

If the Honorable Court please, lean readily 
agree with the counsel M'ho has just preceded 
me in his refereiicv; to the character of tii;' cou'l 
n w sitting in the high capacity of a court 
of impeachment, at least so far as his remarks 
are p rtinent. It must be admitted that no 
court can l.eorganiz din the .-taie of Teiints- 
see \\ hich has s^) high a duty devol-ing upon 
it. i would add to the remark of the honorable 
counsel Uy reference to a court of ancient 
times, !nown as the Areopagus an honorable 
couit of ancient Greece, and join with him in 
attributing to this court the ciiar.icteristics of 
that court of ancient date. That tout was 
said 1 1 ho d i's sessions in the nigiit t me, when 
theligitof tlie twinkling stars, and the eye 
which overlooks and sees all others, only looked 
down upon tneir deliber, t ous They sat in the 
night time, it is said, for the reason that they 
might not see the party upon whose interests 
and righis. they were sitting as a cotirt to ad- 
jiidicate. In that solemn attitude they rep- 
res-uted fully and most heautifuily tlie type 
which we have at the present day of the god- 
des- of justice, stauding blind-iolded and hold- 
ing a'.oft the sca'es of justice, that she might 
see neither the ■ ne nor ih'.- other, but to deter- 
mine the (juesiio . by t!ie weight of its merits, 
and not by the political voice of party or pre- 
judice, 'that anci ni court, sitting in the 
nighttime, could not see the party, that the de- 
cis on might Lie given U|,on the' merits ofthe 
questit'in alone, and when they co ik? to give 
their decision, it was by casting their ballots 
into the urn of pit}- or the urn of death that 
they might lie unprejudiced, unmoved by pas- 
sion, and determine the qutstion according 
to its me lit i alone. I woulu reler also, in this 
connection, to a moti jn made by an honorable 
member of the body on yesterdaj'. to exclude 
party qu, stioiis froni this case. To what ex- 
tent it was appropriate or proper I shall not 
say, but consulting my own wishes as counsel 
in the case, if tiie question of politics 
could be severed from the case; or I'aiher 
ii the case could be presentel without these 
Questions, I would much prefer it; but it hap- 
pens on this occasion these political questions 
constitute ti.e leading questions of inquiry ; for 
it is in 1-, nuection with iliem that the alleged 
mi-demeanor, the adeged crime — and if the 
gentleman please, the aiiegid elonv was om- 
mitted. However much I or any^ other coun-el 
might e-ireto couioini to the wishes of any 
member of this court, we are forbidden so to 
do. for to conform to such a wish in this partic- 
ular case, would be to conform to a lequest on a 
trial lor minder that th^- question of the mur- 
der should not be inquired into. I would say, 
also, tiia' 1 appear as an advocate before this 
court without feeling of malice or unUindness 
towards the accused, and in anything I may 
say I shall not improperly or designedly add. 



152 



the ■weip'ht of asing'e feather wrongfully in op- 
posinir him, Imt I shall feek to travelfar be- 
yond our imruecli;ite ^aze in pres'ntiiifir argu- 
ments lor the consideration of this lionorable 
court. I shall seel£ to know what the truth is, 
and to impress it. if pos-ible, on the minds of 
this court; and we nee I travel no great distance 
to lind the truth, tor truth. liJce b autv, is said 
to hi eevey where, in ova y place that reason's 
child miy se-ik her. I admit, withoouu-el, that 
ii is I'ere-sary thit th evideu e bi-lbro tliis 
honorable court shouM satisfactorily establish 
the fact that the accused was guilty of the 
wrong-, call it by what na ueyou please, wheth- 
er a misd ni' anor or a felony, [take the lan- 
guage oi the bill of indictmint, so to style it. 
ai d J s:iy that it is neces ary that the piojf 
slouldshow that it is true: not only that an 
unlawful act has been done, bit tliat it was 
done willful y knewinaly ;nd intentionally. I 
wouhi say, in rei>ly to the counsel, thiit the ques- 
tion of error in juilgm< nt does not come up Hs 
a question involved rea'ly before the court in 
view of the testimony, not ni'-rely in error of 
.ludgment. or if it was in error of judgment 
inuybe Srtdown as an error of judgihtnt will- 
fully and knowingly. It is not every one who 
errs ii: his own judi'nie ^t who is criminal, but 
no one can be so far wrong as he who is 
willfully wrong. I will ref.r to th'^ 
piiniipl in the cas° stated bv the couns 1, that 
everyone, no matter how high his position 
or how low, IS presumed to kn'iw tie law. hut 
Isay that there are diflerent modes in which 
the inquiries may be made. So far as the duty 
of a citizen to his fellow citizens is concerned 
the principle applies with great strictness, for 
although the culprit b ought to the bir of jus- 
tice may plead that he had no such knowledere 
ot the law, that he was ignorant of it, vet the 
honorable {rentleraan would not insi.»tthat that 
is an e.xeuse, tor it is his duty to know the 'aw 
At the same time, as already sta':ed, I f hall as- 
sert that i he wrongful act charged to have 
been committed by I he respondent was com- 
mitted and that he knew, at ihe time, thit it 
was a wro'gful act. In reter^'uee to the char- 
acter of the evidence referred to by the counsel 
I would sny this: Exception appan'ntly is ta 
ken by the counsel to the word felonious. In 
reply to h ,t I h ive this to state: That the 
word felon}', taking its ori<;inal meaninar, sim- 
ply meant a forfeiture. It is i"'oper that the 
language should be incorporated into this in- 
dictment as it is. 

In i)resentins the argument, if the honora- 
ble court please, there are three important 
fields to which we may look and to wtneh we 
ought properly to look. The first is the State of 
Tennessee, tie second is the legislative halls of 
that State, the third the court room where im- 
pordnt tr.msactiins were had beiore the re- 
spondent. In order to make thi~ inquiry I state 
fir-t. thi't the qutstion whi h originated in 
the~e fieb's is not a mere question betwi en any 
parties who may appear om this recoid and the 
respondent. Mow, is the inquiry or this court so 
mu"h an inquiry nffecting the right and inter- 
ests of the resronderit. Your inquiry h oms 
imrne surably higher. It involves a v>rin- 
ciple at st.ike whiih is the corner stone of the 
!• adin': depar nient of the Government of the 
State of '' ennes-.ee, and whilst the result of 
your deUbera'ions and • onr decision may affect 
the resjiondent — may declare that he has so 
acted thiit It is impro|ier that he should exer- 
cise the functions of the office to which he has 
be> u ap|)ointed, yet yotirdecision will not sim- 
ply beir u|ion "his rights and his interests in 
this connection. Much has been said in the 
argument ot )-reliminary questions as to the 
peculiar character of this invi stii/ation. The 
C'O'i-titurio ' of our --tate is positive in i s des- 
criijtion o( the powers of this court and the re- 
sult ofi's delibei alions, that it is not trying a 
party with a view to punish him, considgnng 



punishment in its proper light, but simply to 
determine whether he ought properly to hold 
the office with which he has been ch'ihed. Any 
punishment in th' light of punishment pi oper 
is to be inflicted by another court, and in that 
otht r court, if such an investigation he had, 
then these questions may he properly ruled 
upon. This eourr. is not sitting jts a< riminal 
Court; it is more like a tribunal Irying a civil 
question than a crirainul one, alth ugh the of- 
fense charsrei is of a criminal character. As I 
before remarked, it seeks not to u--e the power 
oithe law to punish for that offense, but simply 
in hehsilf of the people of the State to determine 
whether one of its important officers has .so 
acted that he should n t b'! clothed with that 
judicial p wer, but be disrobed ot it. It is de- 
clared by the constitutioo that the pow(rs of the 
state Govt rnment are divided into three dis- 
tinct departments, the Legislative, the Execu- 
tive and the Judicial. Sections 1 and 2, of arti- 
cle 2 of the constitution, provides that "the 
l>ovvers of the government shall be divi'i< d into 
three disiinct depaitmenls. the Legislative, 
Executive and Judicial," and that " no person 
or peisons belonging to one of ihese depart- 
ments shall exe'cise any of the powers properly 
belonging to either ot the others, except in the 
cases heri in directed or perinTted." 

I state this as a legal proposition, and I think 
supported by the ulaiuest princiiil^s of the ron- 
siitution, that any one belonging to the judicial 
department who seeks to exercise the powet s of 
the legislative department, is guilty of a high 
offense— an oitense criminal in its character, 
and which ought, which must subject bim to be 
dismantled ol the robes of otlic al p»wer with 
which he is clothed. Growing out of the same 
article, and of the same tenor and spi it, he that 
prevents by power that he mtiy arrogate to 
himselt the excr. ise of power by the legislative 
d partment, properly bel nging to it. is guilty 
of as high an offense as if he were to exercise 
that power himself. I repeat that it is an of- 
fense to exercise the powers belonging to another 
department, and 'n like manner, under the 
same spirit, the ofl'ense is as comp etc as if by a 
strons' arm arrogating novver not lelons^ing to 
him as a member ot that department, he pre- 
vent- the other department from exercising the 
powers legitimately belonging to it. I state 
this as another proposition, wnich I think is 
clearly substa"tiated bv authorities, not o-ly 
in the constitution, but in the leading Ameii- 
cau and Englisti authoiities, thai ot tiie three 
departments, the legislative departnun is the 
highest, and of the three, the judiciary is the 
lowest. The legislative department ixisses-es 
the greatest power in the State G'tverntxent, 
the judiciary the lowest. Upon this point I 
read from the Federalist, page 575 

Take this as author ty upon the points al- 
read\ stated, it might well be atgued that the 
highest degree of importance is to be attacheii 
to the opiniou of this writer; at the same time 
it must be admitted that human nature is li- 
able to err, and I admit frankly that if a judi- 
cial officer, in the exerc ise of his honest judg- 
ment, aided by the light at his command, seek- 
ing that light in the right quarters and in the 
right way, and informing himseif as 
well as he can, then it from honest 
motives ai d fnmi that light he hon- 
csily errs, he is responsible and ought not to 
be puni-hed. On ihe other hand, if he refuses 
to receive the light, if he refuses to inquire for 
ir, and willfully, as the man who buried his 
talent in the earth, be closes his eyes against 
the light or seeks t in an improper'quarter, he 
is then preparing for a judgment founded in 
en or ami criminal to himself. I state ai other 
proposition if the court please, as my object 
is not to dwell extensively on these points, lor 
I am sati-fied that the wisdom and lea/ningof 
this court hasalreadv directed the minds of its 
members to these leading facts, that a briet ref- 



15c 



erence is all that is necessary I say. I state 
another proposition, that the legislative depirt- 
mentof the S ate. organized as it is nncer the 
(Jonstit,ution of the State, needs not that extra- 
ordinurv toiirteenth rule, fconsi'iered extraor- 
diuary hy 'i'C counsel lor the defense) in onler 
to sustain its authority for :Mivthing whie.li it 
did. and of which the r« spondent by his eoun- 
sel oomi'lains— that the Leic shiture of 'fennes; 
see has the power of the provision of the con- 
stitution, and has the power granfcd by parli i- 
mentary law to a legislative assembly I reftr 
to section twelve orthtit constitu ion : '•li;ich 
House may itetermine the rules (f its own jiro- 
ceedings, punish its members for disorderly 
behavior, and, with the concurrence of two 
thirds, expe a member, Vint not a secon'i lime 
for the same otliens; and shall have all other 
powers nece>sary for the branch of ih*' Legis- 
lature of a free State" In leiirenceto the 
power which a L'-Rislature possesses according 
to parliamentary law: 

The speaker here read section fill of Cush- 
ing's Law and Practice of Legislative Assem- 
blies. He also referred to section 615 of the 
same authority, and sections 554-532-.",33-5l2- 
543-C21 622 628 645-646-617-653 655-677-678 and 684. 

Having ref'-rred, if the court please, rather 
extensively to this authority. 1 will state an- 
other proposition, and in referen e to which 
the argument of the counsel this morning has 
mostly been made. It is insistid.andit iiiTist be 
insisted, as a leading point by the counsel for 
the def uce. that there was no auih>rity to do 
the aets peiformea at the extr ordinary fe-- 
sion, because there was not a quorum pres' nt. 
The proposition I state is I his, that tt;e I etris- 
lature, as a Legislature, had been organized 
under the constitution at its first sessiori, and 
that its oriTaiiizatioii was complete. Ir was a 
Legislat ve bo ly.to all intents und • uposesand 
the fact of an adjournment, under the circum- 
stances, did not change its eharact r as a Leg- 
islative l)Ody. It was completely organized, it 
had its officers, it had its authority, it h d Its 
rules, an ' if tne Executive had the right and 
the authority, by proclamation, ta convene that 
body, and they uid convene, then a less number 
than a quorum had a right, under parliame - 
tary )a,v. to exercise any power common to 
Legislatures of a free State. If there was less 
than .1 q.iorum they h id the right to aiijourn 
from da' to d ly, and to eniorce the attendance 
of absent members. 1 would call the attention oi 
the CjU't to something whic i may be a little 
extraordinary. The llth section uf the second 
artic e of the 1 onsiitution, which has already 
been reierred to is, that "The Si nate an<l 
>'Ouse of Keprejentatives, when assembled, 
shall each . hoosea speaker and its other officers, 
be judges of tile qualiticationj and election of 
its membeis, and sit upon its own adioiirn 
ments from day to day. Two thirds oi eai h 
Hou-e shall constitutr; a quorum lo do business ; 
but a smaller number may adjourn iroin i ay to 
day, and may be authorized l>y law t> compel 
the attendanc 01' absent members." Whut 1 
remark as a little extr.iordinury is that in sec- 
tion 14'i of the code it says: 'Two-thirds of 
each llou.^e shall constitute a quorum to do 
busuiess; butasmai'er number may adjuurn 
from day ioilay, an 1 may be authoiized by law 
to compel the- attendance of absent memoeis " 
What, 1( t me ask the court, is the meaning of 
tnat section of the Code? Almost identical 
if not ent.rtly so, with the lonstitutiou. 
Is it the constitution or is it the law or 
the State? What was the inient and 
meaning of the legislators when they adopted 
that section of 146? Was it mere idle play; was 
it a forma I play upon words or did they intend 
to place upon the, statute book of the State a 
law lor the government of the Legislature of 
the State ? I take this position, that it is a law. 



The strange feiture t'lat I re fir to is the fact 
that this sect on of the code is identical with 
th*! llth section of the llth iirticlc of the Con- 
stituiion. But it is here, it is written down, 
does it mean anything? If so, wh 't does it 
me in? I say it means thi-, and there is no other 
rea-onable construction that can be placed up- 
on it, that the exjiression " by law " referred to 
in this statute is the law which I have already 
reierred this honorable court to — parliamenta- 
ry law. It simply recognizes by positive stat- 
ute ihe existence in the legislative depart- 
ment the power under the eonstitution, if you 
))!ease. to exercise all the rights, prii ileges and 
powers of 'he 1 egislature of a free Svate to he 
de eimined by parliamentary law and nsage. 
If i! means anything it means that. I maintain 
it does mean someihing, and that it means all 
that. It is in harmony with the parliamentary 
law alreadv announced to the court I main- 
tain that the very organization of the legisla- 
tive body under the consti'^ution is an express 
grant and warrant ti exercise all the rights 
and privileges whiih the b-eislative body of a 
free State can exercise. I think there is noth- 
ing unreasonable in this. It striki's me as log- 
icd and conclusive, and, as I before remarked, 
if we seek 'or truth we raav find it clo.^e at 
home; for to repeat the sentiment, truth like 
beauty dwelleth everywhere in every place that 
reason's child may seek her. If it be o, then 
we have in the code authority f r all the legal 
Ijower, and more so, than was exercised by this 
Legislature. I say more, because ui der this 
auihonty that legislative body, having less 
than a quorum, could have sent its Sergeant-at- 
Arms with all the power necessary to enforce 
its erders, and hive brought the respondent 
with all those connected with him. embracing 
the COUPS 1 as well as the Suerifl', with his posse 
commitatus, to the bar of that tribunal and 
have inflicted upon them severe punish- 
ment, I make this as an additional statement, 
that in the exercise of that power granted by 
thitco stitution clearly written ■ ut in the 
laws, afier it had exercised its power and inflict- 
ed punishment there would have been no es- 
cape from it. 1 think, however, that under all 
1 he circumstances, that bo iy acted w isely and 
judic'ousv. It is not always prudent or prop- 
er to exercise to the lull extent the pi;wer which 
you pcs-ess. But there was a power, and that 
bo <v. sittingas it did, knew that it> force would 
be 111 ide manifest. The members of that legisla- 
tive body were the representatives of the peo- 
l)le, the agents of the people, responsible, to 
them for their conduct, and they knew that an 
inti lligenr public would commend them for 
their foi bearance. 

I stated to this honorab'e court that there 
were necessarily three fields to be looked to in 
the discussion of the qutstion involved in the 
issue to be tried here. The first is the state to 
which I will call your attention. It it be 
(proper, I wi.l ask pardon of any n ember of the 
court wt^o feels sensitive upon political points, 
and will say to him that it is unavoidable, that 
'he inquiry miistbe madp, as a political ques- 
tion was involved at the time of the action 
of which complaint is m- de. The State of 
Tenmssee occupied a peculiar posit on at that 
lime- a State which many have delighted to 
love— a State which had given many o us 
bieath and had oontamed the ashes of our 
laihers; and above all, I might say, a .--tate 
which, near its Capitol, contains thf- moulder- 
ing remains of one of its greatest adopted 
sons— I reter to Andrew Jackson. That State, 
rei>iesinted as it was by noble spirits, was un- 
fortunately torn from the association of its sis- 
terhood—torn from the house of its father. 
Such, I presume, will not be doubted or ques- 
tioned now. I may refer to the testimony, as 
testimony was introduc d, I believe, on the 
part of tne defense, or rather grew out of tnat 
defense, that there was a spirit prevailing in the 



154 



state to override the better, cool, flispassion- 
ate judsemeut of the most of the people; 
ttiat they were ov(!rwhelmed and turn- 
ed from that affection which their coder mo- 
ments would have cheiishe 1 as a sat red boon 
■within their o) easts But as a fact, the State 
TVastlius torn; a^ a taut, it was dismantled of 
power; it was deprived of its official, judicial 
and legislative power. It was like a 
city torn down, wit'io.jt wails; like the man 
in the Kible, who, having no rup over his own 
spiiit is liUe a citv that is battered and torn 
down without Wulls. Fol owing that condition, 
as the court is awnre, as the testimony is shown, 
as the present feelings and knowledge ((fall its 
citizens will ^how, there was an attempt, and 
I think a laudable one, to restore the State to its 
fiimily sisterhood, to re-tore it to a place in the 
hous;' ol its fat^?ers under one comm jU banner, 
having- one great and one noble end, and during 
that time, as> I think the testimony conclusively 
shows, the matters here complained of origi- 
nated. There had been reguLir steps taken— 
first under the military government, un ierhim 
■who IS now the Chief Magisti at ; of the nation, 
and under his authority ceriain officers had 
been apijointed. i say certain steps had been 
takin looking to a restoration of civil or- 
der and quiet in the country. These steps 
hal been loilowed by the assembling of a lai'ge 
num'ier of the citizens of the Sta'e in this 
chamber, for I he purpose of establishing a 
civil government. This "was followed by tlie 
election of a Governor and members of the 
JLegislauire. Tiiat Legislature, in obedience to 
the wisu and will of its former presiding 
officer, the Military Governor, had taken steps 
for that uerm 'Uent organization, its constitu- 
tion had been amended so as to conform to the 
Constitntion of the United States and the wi 1 
of the party that was to rule the countr.y, and I 
think rule it in wisdom. I may remark! th t in 
this initiatory step e very hing had been done 
for the purpose of completing the restoration 
of the State, evcept taking one fin il last ste;), 
and that step was to ratify trie proposed amend - 
menc to the Constiluti in of th ■ United States. 
We had even gone farther, in fact. The state 
had elected its memlier-^ to Congress an I its 
Senates. They were at their pLtces, or sought 
to be at their places, but it happened th it the 
doors of Congress we're bolted againsi 
them. It happened too that at" tUit 
time the State was, in one sense, 
bleeding at every pore. Without representation 
in the national Congress, without means to re- 
dress its many wrongs, without the advocates 
to pi. ad its cause. I say this >teo was to be 
taken while tiie hand wa^ exiended to tiiC State 
by the national government. There was a de- 
sire on the part of the peo:il>i ti> grasp that 
hand. That desire was manifested by one e.iass 
of the community and relused by another. 
That class which desired to grasp that hand 
thus tendered to them in lorgiveiiess, wis ttie 
power that sat in the legislative asseai'dy at i s 
extraordinary session convened under the proc- 
lamation of the Governor who proposed to 
ratify this amendmenr, thus doing the ia'-t act 
require J liy ihe gene al government prior to 
the complete restoration of the State. Now, 
what I propose to show by the testimony is, 
that to resist rhat step that" the Slave ndght 
bleed, as it had been blee ling, from all its pores, 
that it might be deprived of the beneficial re-- 
suits of eivil legislation and repres ntation in 
the Congiessional halls by its own agents, that 
it might be thrown bick under a mid ary form 
of .gov rninent, that the then present civil Kx- 
ecutiveand Leg;i lature should either be uis- 
missed from their places au'l disrobed of power, 
orthat the St tte should be under the surveil- 
ance of the Mi itarj' <;overnor 

I think I hazard i o lung in the assertion that 
the testimony before this court warrants the 
conclusion tiiat such was inevitably to be the 



result. On the other hand, if the amendment 
was to he adopted, the result would have fol- 
lowed which has followed. It would have 
clothed us with the power, the benefits and the 
blessings which we have received, be they 
many or few. Had their ellbrt.been succes-ful, 
the result would h.ive been as I insist, and as I 
am author zed to argue from the testimony 
here, anarchy, confusion, bloodshed and reign 
of terror, perhaps worse than the State had 
ever known before. Am I authoriz d in this 
a^sumptiony U|)on t is subject, I will have, 
unpleasantly to myelf, to reier to tiie testim - 
ny 01 one of the counsel in this case. I say un- 
pleasiintly, b cause it is always unideasantin 
II y case, or under any circumstances, to criii- 
cise the conduct o any on^. I had rather al- 
ways com iieud. I had rather hear go jd reports 
than evil ones. I hud rather always circula e 
the good and suppress the evil, but it becomes 
nece-sary to make the reference that came out 
in the testin ony of the Hon. Judge Brien. that 
there wus opposition to what was styled the 
"Brownlow Government," That, however. 
Was explained by sajing that the .State Gov- 
ernment was not referr'd to Giving the wit- 
n ss all the benefit of his conclusion, it was not 
the State Government, but an assumption of 
power tmauthorized ani unwarranted — an or- 
ganization of power or an assumed power by one 
man, within the gevernraent. Well, we are to 
look at testimony as we receive it, regirding it 
as lighf, disclosing the dark face of the ca^e 
before us. In other words, testimony, to the 
mind, i-; like light coming into a dark 
place through a window. The room 
may le all dark, you are witl)in it, 
you know uot what kind of furniture is 
in that room, you know nt who may be with 
you, you are in the d irk, the window is opene ' , 
light comes in, it diselo~es what is in that room, 
festimony comes in that way It may uot 
iully disc ose everything, btit it is the light 
whii-h aids you in seeing and knowing wh .t 
truth is. Ui poin; of fact, how was it with 
this eonspiracy— which wo asstime to be a con- 
spiracy ? By whom was itorigina el and or- 
ganized? For what purpose was it originated 
and organized '? For what purpose was it or- 
.ganized, and against what power was it de- 
siguel to ojjer.ite? I think the testimony is 
conclusive thit it was organized by the enemies 
ofthepresent S ale Gover mieut, thatth sewho 
were iriendly to the oiganizarion of sch mes of 
whatever kind they might be which were de- 
signed to defeat the action of every one con- 
nected with the St tte Government or to over- 
throw the State Government were those, as a 
general thing, who hid been frie dly to that 
scene of bloodshed which originated in 1861. 
There were those, however, connect d with the 
opposition who had occupied ditlerent i ositions 
in life. As has been said, there were those, if 
you please. wh<^ h id been in the Federal army, 
"who had espou-ed the cause o the government, 
who were, oppose 1 to the rebellion, and ju^t in 
this connectio i I may rem irk, that it was asked 
iiy counsel, what greatev pr lof of loyalty, of 
right, can you refer to than that th" party oc- 
cupied a position in the Federal ar y. Well, 
we can refer to great, -r proof in olden tiui' s, in 
davs perhaps, in some re-peeti, and in others 
ui-tsogood. There was a body of eood men, 
men that were standing as vdom ers of a new 
era, hea'ied l)y one nobler than earth u-ually 
sees walkingupon itssuiface. But amongthese 
men, if you lemember, there was a Juiias Is- 
eariot, and it not unlrequently occurs that con- 
lidence is misidaced, ami the wise man tells us 
thatcouiidenc^ improperly id iced s like having 
a broken too h or a foot out ol loint It is not 
a ways the case thit those men witn wt;oiu you 
asso late, no matter how careful you may be iu 
your asso dations, or your fnends, your enemy 
frequently comes within your circle, and when 
it is so, that enemy proves to be the wor.st ene 



155 



my, althouph under the guise of friend hip. 
The same wis.e man has given lis another guide, 
that the wminds of a M'iend are not ijainful, 
but the kisses of an enemy are deceitful. Those 
who vere the enemies of the .'-tHte Gov- 
eriJinon- were not of one class. Some have been 
its processed triends, others have been its con- 
tentious ineniies from the start; and what makes 
it more extraordinary is, that the man who 
tookcoun el with the pt^opleof the state in its 
earlier day of trial and trouble, who, in fact, 
hul given "existence in one respect to this very 
organization, afterwards was its enemy. Was 
be ip error, or wa- he guilty simply of a ju- 
dicial blunder? Why was it that such oppo- 
sition from such a charactt r, high as itwas. was 
directed against those who were now endeav- 
oring to take the last steps in the organization 
01 the State Government? I say there is much 
behind the curtain, ard taking the simile of 
light coming in at a window, so testimony dis- 
closes to us the dark character of what is con- 
cealed. \Ve tiiul tliat nil the light has not been 
let in. It is a hard thing sometims 
to learn what is done in secret, and when that 
great dillieulty is presented, and when pre- 
sented secrecy is preserved, itis difficult to get 
at the true state of the case. Matters of the 
highest character are di-cussed in the seciet 
recesses and quiet chamber. It is not expected, 
if the court please, that this will be done in 
open daylight, until the time is come for ma- 
turing the tiling contemplated; then it bursts 
xipon th'^ view suddenly. Even the most posi- 
tive vigilau' e, the most pr. found judgment, 
cannot foresee and avoii difficulties where 
they have been concocted in secret. The only 
reason why the o'ject and ends sought to tie 
accomplisheil in this case were revealed was 
bee luse the matter WHS too extended, it was 
too great a thing to be matured successfully in 
secret: i' commenced leaking out. Acco-ding 
to the testimony here sh iwn we have a witness 
of most tinimpeachble veracity, and I urn in- 
clined to think of the maturest judgment, most 
ca'm an ! <l(diberate in iiis opinion, and lie was 
c.d ed to the stand. By the wav, although y.iu 
may denominate him a U'iend to the Union, and 
a irie. id of Tennessee, and a defender oi the 
capito'. yet I think he is not an enemy to anj' 
living man. The testim'iny of that witness 
was whit? He saiil it was his duty, as com- 
Diauder of the depaitment, to know what was 
the public mind and temper of the people, tliat 
he knew what tliat mind and temper was, thnt 
there was a deliberate plan for the purpose of 
preventing 1 quorum 1 the House of Repre- 
tentatives, that there was a bitter feeling and, 
to refer to lis own L.ngnage, and it is veiy 
pertinent: in his disnatchto Gen. Grant he 
makes a statement that "the Governor cannot 
manage tlian with the means at his dispo-ai 
and has applied to me for military as^i-tance. 
Shall I lurnish it?" Was that witness iiiis- 
tauen? Was there a comoination lor the pur- 
pose of dcfeaiing th- action of the Legisiatuie? 
Was there a conspiracy against the govern- 
ment? Had persons rnet together and con- 
spired to ]>revent a qvorum? Was the enemies 
of the proposed amendment joined together? 
Were tney holding concert of action together 
and were they proposing to at togetht;r? If 
so, tor what purpose? j he piiipose and object 
will disclose the char iCter of th ■ offense con- 
templated, and in this connection it is your 
duty to look ro the testimony acco ft ng to the 
premises laid down and see whether the re- 
spondent in this case, had he means of know- 
ing that such factious opposition exis ed 
against, the st.Hte on She jiart of some of its 
represen'aiives. Had he the means of i-nowing 
it? D d he know that there was Juda-f s wii hm 
the l-iousc, that theem mir s of the government 
had sought and obtained places within its walls, 
and W' re seel; ing to undermine and destroy it? 
Bid he know it? If he did, then if his siibse- 



quent act was in connection therewith, aiding 
this unlawful proceeding, then we think his 
action was unwarranted bv Ixw, and he is cer- 
tainly guilty of no ordinary ollense. Call 
it misd meaior, call it a crime, call it a felony, 
if ymi wish, tating the le^al meaning of that 
term, an offense which works a torleiturein of- 
llce or in State. 

1 state, without referring to the testimony 
more spocilically, that is cl<»ar coinpreheiisive 
in its character, that such an or?ai ization did 
exist, and that the elements composing it 
mainly, were the elements which hid resisted 
the goVi rnment before, had resisted it at every 
step, resisted it on the field, resisteel it in the 
councils of the State, resisted it through the 
press, resist( d it on the corners of the ttretts, 
upou the cross-:oads, on the by-ways, on the 
mouniains, in the vdleys, indeed in every 
place that power was exeited. with no ordinary 
energy. 

I say it was followed up. It is a part of the 
history of the Mate. Suppos-e they acted 
honestly, would that have prevented the error? 
In that connection I may refer to the point 
made by counsel, that if a man is honestly in 
error, he is not guilty of a fault. I am not 
willing to accept tliat as a correct theory of 
morals, lor 1 helieve that a man may be de- 
praved to such an extent, his mind maybe so 
tar wrought upon as to make him believe that 
it is right to do w rong. 

Thehduorable gentleman, in giving his testi- 
mony, stated on his cross-examination that he 
was opposed to it. I believe, it I recollect the 
testimony, th it he was at the head of it, or that 
he was a leaeler at least. The question was, 
how many were going with you; give their 
names. Well, then, it happened that there 
were very lew. F rst, however strange as it 
may appear, it Avas intends d to take power 
from tlie hand of a usurper. To say the least 
ot it. I could not help regarding the testimony 
as being line the old storv ol' a track that was 
»o hard to follow where it wiied in and wired 
out, eaving peopp' much in doubt as to 
whether the snake that made the track was go- 
iun out or coming in. Whataie we to conclude 
from the testimony? Was there any such or- 
ganization, and was it simply a^aui't the ex- 
ecutive officer of the government? Was it that 
alone? Why, according to the statement o the 
witness, he was otiposed to the action of the 
Legislature in ratilying the constitutional 
amendment. But it is unnece>rary that I 
should discuss this before this iionorable court. 
These proi eedings address thems Ives to tlie 
horn St understanding of every one. It was 
something that people were to do. It did. 
wrong to no one; it f dlowed the precedents es- 
tablished in our government from its earliets 
days down to tne piesent. 

1 heie is nothing there but an honorable hon- 
est man, in mj' estimation, ought to subscribe to. 
It might, perhaps, be considered hard as bearing 
upon one Class, yet it was not in their place to 
crv out against it if they were inclined to sub- 
nJt to what was right It was noi so severe in 
its irovisiors as the policy which our Military 
Governor rccommendeil to our General Assem- 
blv ; and if vou take that as a Inundation in this 
1 nquirv, what is meant? Does the President act 
now according to the policy he had wiien he 
was Mil tar V Governor o! the State? I answer 
no. What does th'S testimony establish? Jt 
establishes that this factious opposition was 
based on a differai.t motive, that the same mo- 
tive which burned in their brea-ts in 1861 yet 
lingered as smouldering fire in 1866 They were 
the same elements that existed bel'orethe^v lin- 
gered on the heel- of the sovermient ready to 
attack it and strike it down if opportunity was 
afforded I repeat can there be any doubt of 
the organization of that body for the purpose 
of opposing the governn^ent. I appeal to the 
court, i press the point in argument, whatother 



156 



result could have been contemplated by the ef- 
lort to defeat the adoption of ihe constiiutional 
amendment than to tirow the Stae back aga n 
under a military organization and military 
rule. I can not see that there couM have 
been any other object. Is it a wrong of 
which the peoule may complain; is it a 
wrong of which tho legislativr department, 
as tlie agents of the people had a r'ght to com 
plain and to denouncL' those enga,sj;ed in that 
conspiracy? I think there can be no doubt 
on that >i{bject, and that the testimony slows 
that it wa- so. In th'Miex' inquiry let us 
see what were the rights of the J^egi^lature. 
Here w.is the Hou'^e ot Represent 'tives; we 
will suppose, for the sake of argument, that 
there wa- 1 S-: than a quorum present — I care 
nothing for the question— there was certain au • 
thority on the part of the B'ceiUtive to 
convene the 1-eg slature; that proclamation 
was made nvder the constitution; theS»nate 
had a quorum— the other House had litt'e less 
than a quorum; how w;is It in that leijislative 
body? It wa< like the figure presented by the 
swallow inoMentime>: a swallow came an i 
built its nest in the Temple of Justice ; it came 
complaining to the officers of the court that a 
serpent tad crept in and despoiled it of its 
young; and how coulil it be that i-nch a tres- 
pass was com uitted upon her in such a place? 
The answ^er was tnat even the sacred retreats 
of the Temple of -Tustice might he inv ided by 
the serpent and despoiled 01 its innocence. So 
it was in this legislative a-sem ily; if I am 
right— if there is truth in the historj' of the 
country — if its records, wri ten and sealed as 
they hre in blood, there was a ^reat principle at 
stake; there was an element ot success on the 
one hand a d a destructive element pitt'd 
against u, on the other. Was it alawiul a>sem- 
bly? It certainly was; there can be no doubt 
about it Ipre-ume that in the argument of 
the case that it will not be denied the object for 
which they met was laudable; it was a right- 
eous objec. ; It was a legal oljject, and the L<g- 
isiaturj h;id been called by pri)per authority. 

Here w s a lUle adopter), I believe, as early 
as 18.i4or 18 5, au'horiziiig less than a quorum 
to compel the attendance of abxnt members. 
How? By any means they saw proper to 
adopt. 

Parlimentary law says, send your officer 
after theu); compel them to come in; arrest 
them and imprison them, and hold them duiing 
that term. The rule had been adopted by the 
Legislature; the rule is now standu g 1 insist, 
h.nvever, that it wa^ not necessary. The con- 
stitution code, the Parliamentary law. was 
sufficient authority, but they acted out of 
'anuu lant caution, as it was a special case. 
Was the Legislature not organized? it had 
been thorougiily ortranizid; irs Speakers, its 
Clerks, its Uoorkeepers, and called together- on 
an extraor<linary occa-ion, and having all the 
power It might desire to exer^ ise, .md in order 
to eflect tills jmrpose, a purpose which was 
vital to the Stale, depending upon it was the 
life of the "-tate, depending upon it was the 
qu( stion whether we were to nave civil q liet 
and order, orjconfiision and blood-shed; a. reign 
of terror and a milnary government, rather 
than civil government. To prevent one and ao 
compli-h the other was the object of tbisexra- 
ordinaiy >essiGn. They exerc.i^ed only their 
power alter those who were recreant to their 
trust refused to perlbrm thiir high diiti' s, then, 
as a matter of justice, the sworn officer of the 
House was Sent out with the Speaker's war- 
rai.t, and arretted those n'creant and disorder- 
ly members and brought them in. Kvry prin- 
cipal of law, every principal of reason and of 
common sense, -woulu di. tate that the act was 
requiri d it was just it was right, it was legal, 
and absolutily necessary. 

We go now to the court room. I invite jour 
company, examine the testimony, it is in small 



parcels and fragments, but put them together, 
let common sense teach you what the 
machinery was. We have necessarily to depend, 
in a large measure, upon circum'?taniial testi- 
mo y, which the law defines in some respects 
to be better than posi'ive, the verv best kind of 
testimony. Put the pieces tog ther and see 
whether It is a complete madiine li you put 
the par s ol a ma hine together and it works 
with periect regularity, the concUi>ion is that 
the different parts were placed where thev' be- 
long How IS it i'> reference to the evidence 
gathered h; re on the lei()ing question? 

Did the respondent kn'nv the object for which 
this cap ious, 'actions opposition wa- organized? 
Did he know the 01 Ject for which the Legisla- 
ture had met? In his answer he. said he knew 
a considerable portion of the law, and some, if 
not all, of the constitution. I take tfor c^ranted 
that thei'e is no doubt that he knew the e was 
authority on the part of the Governor to con- 
vene the Legislature. Here however, inter- 
venes a case of siec'al pleading, thai; the gen- 
tleman did not know that le'S than a. quorum 
had a right to pa-s a legislative act; he had no 
knowledge thar this Legislature had passed a 
law to compel the attendance of ab^el:t mem- 
ber-. It Was not necessary that he should. That 
had been done in 1835 It had been provided 
for when our coubtitution was fiamed, when 
the principles up m which par.iam. ntiary law 
is founded were established throughout Europe 
and America. It was not necess.-rv that such 
an act should have been passed, lience I denom- 
inate it as a species of special pleading, an op- 
portunity njw taken to evade responsibility by 
denying the knowledge o' the law which will 
form a pr. tence to retire under the cloak of ju- 
fiiei 1 blunders. But let us take the first step 
in that co rt of justice. We had an insight 
thntugh the testimony of the Hon Sen-.dor, i»r. 
Frazier, as to how that step was taken, and it 
was by a meeting of s me member oi thi Hon- 
orable Senate and the'Honse of Representatives. 
With whom? With those who, in violation of 
their duly in the face of the law ol the land. 
Were, and had been committing a breach of the 
privileges ot the H u-e, disobeying a rule as 
old as 183i, yes; much older than that, for we 
are now tulldng about principles, am! no one is 
so blind as he who closes his eyes and is unwill- 
ing to see. 'Ihose members knew beiore they 
left that they were doing an unlawfol act. But 
they prf po.sed to do it, ancl they i isked the con- 
sequences, just as the respondent did in this 
case. In the testimony of tne witness referred 
to. it was st.ti'd that they were "vaiioring." 
Well. I am hardly apprizd what that meai.s. 
There was great difficulty in ascertaining who 
were inn-e o "vapor," an t a good ileal more 
in learning what "vaporing" meant. If we 
may concluile anything, I conclude that; the 
"vaporing" meant this: denunciation of the ma- 
jority, who were present and endeavoring to se- 
cur.i a quorum It was contumelious express- 
ions, contumacious denunciations of the lead- 
ing iiowcr of the State Government, and it was 
in harmonj' with those extraordinary lett rs 
which came on their swift messenger wings 
fr m Waohington city, came from the White 
House, aad roin those placed higo in author- 
ity by tne State outside of the organizations 
already referred lo. Sometimes a State does 
commit blunders; that is admitted. That. I 
presume was the vaporing. If we knew what 
that vaporing was, if we had had a reporter 
there, or if we could have hail a s cret whis- 
pering ctiamber, as in days of yore, or if we 
could have had a golden ear ihat the Latin 
poet speaks of, we would have he»rd much that 
would have astordshed us; we won d have heard 
that which would have caused our ears to 
lii'gle, and our hearls to palpitate r ipid y That 
vaporing, however, resulted in apjiiicition to 
his Honor, Jmige Frazter, for a writ of habeas 
corpus. I wish to call your attention, if the 



157 



court please, to one important featurp in tint 
application. There is nothing, pcrliai')-;. tliat 
gOf'S lurther in detcrminins? a man to act cor- 
r ctl}' than a hit:h moral sentiment ann court- 
esy unci resiiect to his s perioi-, and even to his 
iul'erior, when fluty requires ir. For insta' ce, 
rtsiect to age inipres>es upon the mind of thi' 
stransTcr, though stranijcr he mny be, tliat the 
one granting that respe t liaa a high moral sen- 
t ment, that his heart is in the ritht |ilace. and 
that its beatings are regular. R s. ect toinie- 
ri rs and equals ijo in like manner to the credit 
of the party extending it. VV as tiie restiondent 
ignorant o' what, was to be done, and who was 
to <lo ii, atid whv it was to e doneV The lan- 
guage of the leatling paper upon the writ of 
habeas corpus showed this, and wa at once ex- 
ceedingly lii-iespeciful to the Executive of the 
State— 'His Excelli-ncy, W. G. Hr'Wnl )W. Z^j/ 
»^m6 sort of -proclamation, etc " Ii' the honora- 
ble gentleman had aiij' doubt before - if he was 
not advised before, of the object and inient of 
this aciion, there was enough in that to show 
a malignity on the part ot those engaged in that, 
attempt. "But let me cnli yaur attention lo 
anotiier fact as it is laid down and a part of tne 
testimony, :ind upon 111 it leadi gque>iiin turns 
the wliole ca^e. The langu g>- used by the re- 
spondent when a)iproai"hed by the conns 1 for 
the parties who allege I th t tliev were wrong- 
tuilv restrained of their lilj r.ics— let me call 
your attention to it: "Now y u hive come to 
get me iiito trouble." S.-meilaii s a very Itttie 
means a great deal. A word or words may 
not amount ti so much as a wink. Wliatdnl 
that mean? Why was tlie expressio > used, 
"You have come to i;i't me into trou'de?" I 
invi'e your attention to that; part of the te-ti- 
mony. and I invite you to look at it carefully. I 
give you my cou^t'ucton, an i I ask you to de 
termine whe ber it bo co rect or not. That sub- 
ject had maniiestly been canvass^ d befo e it 
wa-< known what; application was to be rnaiie, 
and why it w 's to be made. It was known that 
it was in furtherance of an object ot a eading 
spirit at Washington city, and tliose acting in 
conlerence with liim in the State of Tem.es-ee, 
than this \\-tis done to release the parties. ''You 
have come to get m- inr, toiible." Well, if 
there ever was a truth spoken, I pr sume that 
was, tor so it happem/d in the sequel. It .^hovvs 
clearly that it betrayed a knowledge on the 
part of the respondent t lat there was an 
miproiier ait to be perfonied — an il'egai aiid 
unwarriutable one, a id that; l.e was to ue the 
party to do it. Sometimes men who occupy the 
best pla es in the community commit the h'gh 
est oflVnses The questi.jn of characier. let me 
remark, is never raised unless the question of 
gu It is coni eded, but when the balaii 'es tand 
about equal, as much reason lor gui t as for in- 
nocence, then you are forced to loukat thi- ques- 
tion of character. But for all other purpnses, 
the character of the respnndmt being high, 
beiui;' elevated himself, the oilense is more 
aggravated thaii it he pos essed no such cliurac- 
ter. Then, I repeat, what was the meaning o*' 
that language. It means a great deal. W neu 
you write it out as a chapter of truth, it ilis- 
closes that be knew there was to be an illegal 
and unwarrantable act p r ormed, that it u as 
proposed in aid of a conspiracy lo defeat the 
actior? ot I he State, through its Legislature, ami 
that he was to be the parry to ilo ii. Am I 
right in sa: inif that he had counsel there? 
Were all those acts P' rf rmed h\ him. or did he 
lend himseit improjierly to the influence of 
others? I am compielle i to assume the litter. 
We have in test mony that the leading papers, 
the leading decision, was wiitten by sume one 
else, and only signed by the respondent. Well, 
that, orilir.arily, migh' amount to nothing. Bur, 
if the oidniin bad not been written by someone 
interested in the result, it • ould have be n easy 
to prove here tliat it was writt n bj- a clerk to 
■fthom such power had been delegated by the 

'i 



lOJ 



court. But looking at it as a matter of truth, it 
pre-ents little inore than the exiraordtnary 
spectaide ot one th ng done by the force of 
another So ii is a misdemeanor for a indicial 
ollicer to 1 nd himself to the opinions, ti ■. How 
otUers to think and decide lorhiin; and if sm 
error is committ d. shal' he be allowed to say 
then that It is an errorofjudgment and nothing 
move? How mi'ch let me inquire, was ihe 
honor ibie gent ema ' authorized lo do on this 
occasion? I am wi ling to admit this much, 
and hardly willing lor ihat, lor ir you look to 
the truth, as t gi-ows out of all I'he plainest 
priniides of law, which I th uk every man 
ought to know, he had not even the ai thority 
to do wdiat I am pioposing to admit, naineiy, 
the riaht to grant the wiit. Ani why? Kirs't, 
the app ication came clithed with an insult to 
the chief executive otiicer. There w as insob nfc 
laniru ge incorporated into the body of that 
instntmeut. He m ght w. 11 Lave paused to 
find onie motive lor this, coming fiom the 
quarter it did. Again, 1 say that it is a stretch 
of au liority to say tnat be might have issued 
the writ for this reason; theie is in the Code 
expre-s authority foi bidding the i;5Siia.ice of a 
writ of habeas C)rpus in ccitain cases, an'l 
although it does not expressly embrace this, I 
think that no man having three oun es o' plaia 
practical comm n seii-e could doubt its i)res- 
e ice (here in Sjiirit withoutre erringepecially 
to this. I is thus, that any one held in custody 
by a ouit of Ihe Uniiid >t itis, or an oflicer of 
that court, where it has original jurisdiction, 
or where the jur siicion is concurrent, an I it 
has assuiiKd jurisdiction, the writ shall not be 
issued. Whj ? Because there is an authority 
wbi. h our law has thought proper to respect, 
and to leave them to determine that the courts 
of this -tate shdl not interfere wheie there is 
an aiith irity of that kind Now, let me ask 
whether we have plain principles of our own 
'aw, especially when we c- moare them with 
other Muthor tits, to authorize the Legislature 
to inflict punishment w^ tw its members for 
di-oiderly behavio. V Cotild the honorable gen- 
tleman have been mis aken; conbihe have been 
in error as to th .t point artful y insinua ed 
here in tliis special pie uling, that he ditl not 
know that less than a quorum had a risht to 
pass ceriain rules? It is a special plea; it is a 
dodge He issued the wiit under extiaordi- 
na y circumstances, sayins, "You are going to 
get oe iiiio trouble." But a sworn oflicer of 
the House came with C'edential, under the 
spicial order ot that House. What was the 
return; can he plead ignoranc of it? The 
only plan is to fall back and ti) relj upon that 
dodge ol a quorum. he t: uth is, ihat he 
knew the farts in the case, and that is the 
reason he said, '■You have come to get me into 
irou le " An order is i-sued for tie r. lease 
of the members held in custooy. The .Tudge 
refuses to rest ect the authority of the House. 
He send an otilcer for ilie purpose ot releasing 
the members in custo ly. 

Second, as to tlie m nner of executing the 
process. Is y it is a little extraordinary that 
the atithority which was rea i to the sneriff 
w is that which r^ lat-. s to i he arrest of a fel in. 
What off n»e had the otiicer of tne House 
commitied? But Ju' ge Frazier ordered his 
ar e t. 

Ibis leads us to inquire as to the manner of 
executiu: this extraoruinary pieces ; and as to 
which, it is a little ext o,irdiiiary, that ihe au- 
thority which we are told by the testimony was 
read to th< Sheriff, was ih t ol ordering ahouse 
or du.ir to be broken lor the purpose of ari esting 
a felon. 'J tie authority is admitted, hut .>ur. ly 
no one could, for a moment, sup ose th t it ap- 
plied 10 Ihe case in question. What offense h;.d 
Capt, Hey.lt, the • tlicer of the House of Kejire- 
sentatives, committed, co st tuting him a 
le on? Or, in what 1. gal light <ould Judge 
Frazier esteem the condi iou of JMartm or Wil- 



158 



liam=, which authorized an application of this 
sec- ion 01 theCorie to h^^m? Iris not rea-ona- 
ble to uppose that he resrarrlecl eitiie'- Mavtia 
or Willi tins ts felons, and lialiln t ) s iziir'- un- 
der the section o'' the Code r ferred to, nnder 
liis orders'? ^o, we an- leit to the construction 
— indeeii, are forced to it— that he Se geant-at- 
Arms ot the Hou'^e of Represnntitives, was the 
party est 'emed by Judge Frazier as under the 
ban of a fe on; and to m^ike his irrfst was this 
speci:il section of th:> Oo le reterrcd to, ro break 
open, not a mansion house or dwf^llinx, but ihe 
Capitol of the State ; and so the order was exe- 
ciitt-d. A'ul liy whose auth rity, pray, vva? t 
dou:;? The wrong for wrong it wns, cannot be 
th'Ovvn u on the Sherirl' ai^d his po-se. Th > 
defendants own testimony do> s not maVe it 
so, or mark the lan^-nage of Ju ge Frazier: 
" Aiti otiah that is the law, yet I would < ot 'd- 
vise h'.rsh measures. Wait untd m >rning." I 
suhmit ttiat such language was but an artiul 
lorm of direct n< or authorizing a v olent act. 
Or, if lam mi^tiken in this, then let me ask, 
was su -h th« langiiLig^ of one clothed with, ana 
pr<)perlv exercising the powers of a judicia' 
officer?" He had the ight and powor to c-.om- 
niaiid; ami if e dd not do so in such eraer- 
gan<-.v then was his langnige and action a 
positive authority f>r th ■ spri-us wrong here 
complained of ; and on the h -ad of the respon- 
deat fdis the weight of tlie guilt. In coniec 
tioa wic'i bre diing optn iheCipitol, I wish to 
refer to one extraor in ry, yet fitly appropriate 
feature. It is rein arkable th it the breach was 
not m ide at the main ent-ance, althou^'h it 
•"ouid tia%e be-'uas easily m ide there; noi' was 
it through the Gjvemor or -ec etary's rooin; 
nor t'lrtugh the officfs of the Treasurer or 
Comptroller; nor the chamber of the Supr.'me 
CoiirbQi' tho state; through any of which an 
entrance < ottld havf bfen as easily forced or 
perhaps mor- so; but the b each was made 
made through thij cham er set apart for ihe 
sitcnig of the United States District and Circuit 
Court-. 1 s ly the pla ;i'Oi assiult was strangi-ly 
and litly ap uropnatc, when we take into account 
the idtaract r of the assailants, tlie a^ithority 
under which they were acting, and the pu - 
poses for which their action was se on foot. 
The breach was cerrainly made at a signilicant 
place. An important action wa5 about to b 
taken by the le;{isiative department of the 
State, which would cause the proiecting power 
of the Federal Government t) bt' more closely 
and inimately thrown aioiind our State or.;an- 
iza ion. I'nat action was severely and bitt rly 
contested by the p wer whose agents and in 
struments the Sheriff and his posse was; o, I 
say, it was fitly appropriate that the windows 
of the Federal Court room should be selected by 
them tj be first bi'oken in; thu the sworn and 
duly authorize' I officers of the Hous ■ of Repre- 
sentatives might be viol ntl- seized. What of- 
fense, let me repeat, had tids officer lieen gui ty 
of? He nad simply and truly disch irged the 
sworn duties imp >se I upon him by the H use; 
and I think I have shown by ainp'e :iuthoritifS, 
that the House was fully supported ini s cv ry 
act, by the constitution an i laws of our own 
State," and by tlie broadest principles of p irlia- 
mentary law. And were we to admit, for argu- 
ment s sake, that till action of the Houte was 
erroneous, then how dai-e .Judge Frazier hold 
tills humble and obeilient office responsible fir 
the wrouiS of the House, and inllict punish- 
ment on him'? Why stride Ids talons into the 
flesh ot the excusable a ent, and let the body 
of the princip.il go free"? But >o it was; the 
Sergeant-at- Arms was thus forcibly and vio- 
lent y arreste i and imprisoned, and, alter hours 
of <'el i,y, brought, under miard, boiore the 
respondent, .-itting as a court. 

Um to this stige of the transaction, wo have 
had something of the tragedy t.> ileal wiih. 
!Now we coirie to t le/rtrce.' Andl suppise it is 
■\vell that such an cxtia^rdinarv scene should 



have it< fO'xe. Bear in mind that the plwceis 
thfi Cou'-t room, the respimdent as Judi;e of the 
Criminal Court, sittinjron the bench. The felon 
is \Vm. Heydt, Serg. ant a' -Arms of the Huuse 
of Hepres ntatives of the St t • of Tennessee. 
The offense ch.aged is a faithful discha' ve of 
his duties as such orticer, which was esteemed 
as an act of contempt toward the h'ln rable 
lourt, authorizing a iireaih nf the cai)i ol build- 
ing ill the night time so as to reach iiis lelo- 
nio >s holy; nd— m rk well the legal c mc!u- 
sion— forsu h, hi- offenso, it was a Ij dge that 
he should pay the sun of ten dollars cost, w hich 
we are told w;us le-s than half the ley^d c st in- 
curred. And the unf a'tunate priso ler. h vi g 
been despoil 'd an I robied during his arrest, of 
ttis poc et book, was f mud mones -less, and was 
there seemingly friend ess untd the hcmorable 
CO rt, who alone, w.is the le^al authority to re- 
ceive the money, (for he was si ting withou a 
clerk,) c im lorward t the r^ scue. and d op .sed 
a loan of the araonnt of fun s required. Was 
ever ilegal larce so great? In point o fact, tlie 
respondent as a ccnir , decid<-d that thepriso er 
w s guilty of an off'nse or wrong lor which a 
tine ought to be imoosiil. but stili,in rePa-ing 
him, tixed him with ten doll r- o cost, and 
loaned the prison, r the money to discharge ihs 
Obligation. 

At this point the curtain mig't well fall ; and 
wed would it b ! foiithe respondent, could it 
hi'le forever his errors and his wrongs. 

I will call th ! att nt on of the court to an- 
other poinr,. AS I have a're uly stated, the ques- 
ti m of t stimony is o e lor yo ir con idetation, 
and yiiu are to 1 ok at it in "the light oi ie,.son 
and common sense. I have stated that it was 
necessary that the prosecution should sh >w that 
fh re was a wr«ng coinmitied of a character 
to cause a forfeiture. 

This, I think, has been conclusivel ' shown. 
There was manifetK a conspiracy of a broad 
and d ep character for the purpose of smoth- 
eiing the lawlul action of the -tate giv rn- 
mtmt, and inflicting on tts people tlie pains of 
wore than a rebeili m The proof as to which 
is conclusive; and by the ao'i m of the respon- 
dent, the m dignity of his c luspiracy wa well 
iiigi brougiit successfidly 10 bear against the 
authorized (lower of the State government. 
T'lis, however, is lor you to determine from the 
proof. Ttie re-pondent's action m the preni ses 
is clear and unquestion ible. His ac s are writ- 
ten as I part o public history. So we are only 
t) inquire, was he leg dly and morally con- 
scious of the wrong he did? I answer, yes. 
His acts and his words prove him guilty. He 
Knew the wrong conti'in pitted. He knew wed 
the consequences which would flow from his ac- 
tioi, and hesitated before taking tne step, 
making his act one of de iberation. He de- 
elare i that troub e awai'ed him. and he IcneM' 
that it would be because of a deibe ate //rong 
to his country S) I affirm, that admitiing the 
resv) ndent's good character heretof re, his 
wro g, his crime, if you please, was 'herefore 
none the le^s, but greater; lor "to whom inuch 
is gi en, much is required." and if he whose 
hea I and heart ought surely to guide in the 
right way, willfully turns to works of evil, his 
• ondemnatiiin is, tlii refore. but the greater; for 
he carries in his cons ience the stinging words 
"ye knew your duty and ye did it no'." 

Tne respondent ui ed not plead th t ho wae a 
devoted friend to the cause of the l<'ederal 
Union if the proof sh >ws that later ac s are 
those of hostility and enmity to that cause: and 
such I insist, is shown by the evidence before 
us 

For illustration, suppose a bright eyed little 
girl be t rn trom the bosom of her father and 
niiither and 'he arms ol her brothers and sis- 
ters, ami wrou^'fulty carrh d from th hearth- 
stone around which all her tender re ollecti ms 
and assoeiations are wmt o cluster, and after 
Severe sufl'ering and torture at the hands o 

f 



159 



crupl enemies, ?he meets wi*h a prole? sed friend 
wtioaidsin !!■ r release tV m lier e eiuies and 
leads lier back towaulthi home nf her i liiid- 
ho 111 aiui love; bid ^ h , assiie i> about lo cross 
the ihie Idiold of the h me of which she was 
riiiibed, niiely tlirusts her back into the 1 and 
of hei •■nemics ana loimeniers could i-h>- lock 
■viiih pleasure or iiiatituile on iliese acts of 
pi-i f ssed friendshiii? Uafhcr would noi their 
reco lec.iion hei>clit n in her bosom ale. ling oi 
scorn and C) tempt for sue ac ion as tiiac of 
an tn my in der the guise of Iri n ship? A d, 
niii\ no chivalrous I'l iiinsse«. in ihis case, lep 
resent that bright eye i s sler in our lamily of 
Stritis; und wh u fhrough her tenrsof b'lxjd 
•\veiried ;.i.d torn by the blighting conflivt of 
years of earn ige, s e was ready, (let ns admit 
throir^h till aid, in part, if the Vespondcni,) to 
cross 1 hi- thvesldiold nd mlngl with lier si - 
tors of fi) mer d.iys, the hand of the respondent 
(seemingly a friend) wis, Judas li e r ised 
against her. And uow.J shall such former arts 
oil wei:-h the latter? ii so, let Jiidiis b de 
cla ed a t hristiaii, and let historj inscribe, 
with pa'ri t's njines, t en;;rae of Arnold 

In this connei-ton. b t me lef r to a strona; 
item of ci cum-taulial testimony, sliowi- g, as 
I think conclusively, the gu It of the reSnon- 
deiit And I do It vvi h nn spiiit of uakindness 
towa'd conns 1 m ih s causf'. 

It is gea- r;dly well esti emed as a truth, th it 
one is known by the company he keeps; u-, s 
the a lage is, ' Birds oi liie sam.' feather flo k 
toge her." It is a m itter of testimony in h > 
c Us. . th:itiu th(! inceptu n and |llogl^^s of the 
eel br<ned habeas corpus cause, JudiC Fraziei 
took counsel wit I theatorneys for the peti- 
ti. ners, whi. h at orneys are shown t luive 
been Iriendly to iho conspirai-y oi ■ hiidi we 
h.ivo been sj.-eakmg, and pijosed to tne pio- 
jiosed iiC'ion of the Leg ^latire of the sta'e. 
He w ;s often seen in their oMces during the 
pr 'iciess of thos causes, in the day as well as 
night lime; but in ni instmcediel heappio ch 
tne vOun-el for the House of Kep esen-.t ves. 
Why w 'S this so ? I aiis -ver, because his senti- 
ments favore the ctmspiracy. His ojiuiio s. 
Oie being an impress.iiile ra n,; were uioiuded 
Witii. a d p ssib y, by those .if h'S associates. 
'Cong njai passions, f-ouls tOi. ether bind, 
Ani evevy calliiig niing e^ w th us kind; 
Soldier with so dier, su uin w th swain; 
Ti:e m.iriuerwiih him that lovo^the main." 
"A fellow-fe ling makes Us wonuro s kind." 
In conclusion, gentlemen, let me .~ay, ihat in 
any thing 1 h vc said 1 have s tight oni, to 
aid you by an allusion to an liori ies, and 
by seeking lor the irut i, for re isoo and lo 
common sense, as a guide, i feel that you 
wi 1 perform a dutv lor wnich you will "feel 
none of the stings of conscieni^e hereufier, 
xtnil for Which you wdi be approved by the 
counuy. 
The i.ourt then adjourned. 



SATURDAY, MAY 25th, 1S37. 
The court met at the usual hour, uU the mem- 
bers present. 

AKGLTJIEKT OF JUDGE GAUT. 

Judge John C Gam continued the argument 
on the part of the lesi ointeiit .is folii ws: Mr. 
Speaker and members of the cour. I now p o- 
cee to maue su.h ariiuinent and su-gestions 
to Chi- iionoiable court in deie seof iiiuge JB'ra 
zier, the peisou ch.irgeii an set to be imp achd, 
as tne ease may seem to warrant. I am a.\ arei 
Mr speaker ..ud ge tlemcii of ihe • ourt that 
tins is an important casu. It i-, perh ps, the 
fir t time in the his;ory of your li es, (ami in 
all proiiabilitv it wi 1 be the last, ) wi crein you 
have been called upon as a coui't to pronounce 



.iudtrment upnn the high ollici.il of the Ptatc. 
It is thelirst tune, also, n my life, in which I 
have had the privilege of appearing beio'e 
sni-h a tribumd 1 approx< h the agumeiit in 
ihis ca e, Mr. I'resi'ieni ai.d gent emeu of the 
couri, with I doub e sense "I outy; urst, thit 
of a lawyer t> his ( licni, und si con ily, of ap- 
])eaii g to present the ca-e (da man wih w horn 
Iliavsi u t dned int ni.ite r 1 alio ns for 28 yea is — 
a man w'o us ih proof ^hows, ha livid 
through youth, through m d le at:e, and ulinost 
uiitil the suns t of life, so t.) spe.k, wthout a 
lilot or stain upon h s chaia te-'. either as a 
man, a citizen a lawyer, or a judge, unti: this 
charge was br tight a^.- iust him. 

It is true, too, ih s chargi! is brought in the 
name ol the State. Theie. however, is no m .gic 

n th it because tinder the bill of right- ^nd he 
constittitii n i f the ^tate,, the chaig'^ could be 

r light in no other way. Kvi ry <di rge oi a 
ciinunal chara ter, from the hi: hest, to the 
lowest, nmst run in the nume of the State So 
with the writ of hibeas corpu-; i; is a wiit in 
the name of ihe State, and the sovereignity of 
th - Sale [.- inter' St d in p.oieet ng he lives 
and lib rties oi the peopn in every orm and 
sh pe, and t can on ^ be done iu ihe i aine of 
the Slate, and through the m ges y and sovei-- 
eignty of the state fco. w I en Judge t'razier 

u as trying the case u d-r the writ, of habeas 
cnpus, nd endeavor ng to disc arge his ury, 
he was doini; it in the nam- o' the S a e, in 
bell If OI the state, : nd in the intere-t- of 'he 
St.-ue F r. if theie is a y one thing th t the 
frameis of this ijoveri uieni have been speci Uy 
sol citous a o t, u is ihatoi gu.ijdiiig the entire 
rights of the cit zen. TMs haige, if the hon 
oraile cou t pnae has been preiVrred. and 
now we di al with it as u e ileal wi h an other 
c arge, ciordmi o ihe 1 w" ami theevideiic;. 
VV (u you weie e ected a S nator:-, ; nil v\ hen 
you t olv your oath as siuh. in all p ob bility. 
not a meiiiiier of .t'lis fteinvt ■ lir unied, at th,t 
time, that he would be tr usiormeil nto a eouvc 
of impeachineul lie-ore Ids -• natorinl term of 
olii e expired. You are nt siiiiig here as 
Sen.ators, > on ; re not si ti. g her uiiecr tne 
oaih lU" Se' ators, but so to speak, yon h-.tve 
doffe I your Sei at lial rob s and hav. tai-en an 
oath, thi- siihstanee ot v>hich is, thi' you w 11 
Well and truly tr\ theis-uejo'ii d i etween the 
ptople of the S-iai'e ;uid the def ndanr :,t the bar, 
anil thai you ^viU true lienv rance make 
between the people of the S ate and the 
accused, and a tru- verd c leinUr ac o ding 
to tue 1., w and testin ony; and iha' oalii you 

re a- ting under now, au i not under the Si na- 
tor ial oath. 

Fiisr, then, if the hororab'e court p'ease, I 
will beg tluir alt nrjfin ^orafe.v momeut . We 
m-y lessen ,tir iluties, we my di-euciimiier 
this case very mmh if we wil t an out m n s 
ba k an see what is t'.ie busin ss befor.- us. 
w hv. wh t are the duties w e have to pei lo m? 
Whati is tha ch ;ge? hit is t' ela\> a d die 
eoiiei.ce? Int ea :eesw itien on ihis subject, 
much lia> b en said bout t'v powers oi the 
II use of Loids iu the i riti-h Tar iat eiit. 
Much hHS been said and an be said bout the 
powers of th I eg slat, lie- of tales, sibou tfe 
p iwer ot the Co giess'fthe United Stdes, 
and the House of Ueprisenialives. Mueh can 
be sad al)out the power . f t e State J.i gila- 
ture, but uhat I wis.i i diiec. the at mtion of 
tie court to. is, t at unoe the governmeiit of 
th • Ui ited Stites, and under th Congress of 
the Un t d -tates,. the fr.imers of this g vern- 
ment ha e e t out very mucli of the pi-w ers of 
the I'.ritish P,ir amenr, and have miopted a 
writ en goveininen' and a wiittuu constitution 
for them's^ \v> s. > gaiu, if the hoi.oi able . o"rt 
ple.ise. wdien each Sia e cine to act and lorm 
its consiiiution, t e pjwer of its i.epre-cnti- 
tives and Senutois w, re regnl ited by the con- 
stitution. This State constiauion you and every 



160 



other .jnrlge in the St'te of Tennessee are sworn 
to maintain and pn.tect. 

And lir?t, 1 >hM address myself to the .iuda-- 
ment and intelligeu e oi thi court. What a-e 
the rules that go ^ ern th s couri ? W tlioat, re id- 
ini< much commentary, and without reading' 
what 1 conoid r di •cctly t > the p'dnt, thn first 
thing I w sh to bringb io e this couit, is se -tion 
798 oi' Story on the constitution, a wnrU that 
nouody will doubt or gMiis ly. It is an el men- 
tary W'>i k, a W' rlc 'ooUed toby th courts to aid 
and assist thorn in.iudgi'g nnd iuierpretin ■ the 
CO S'itiUion of ihi' Uii ted States as well st'io-e 
•of the several Stales. The p^int that 1 vvishtodi- 
rec your attention lo, is, tlie rules liy w lioh ihe 
cou!t is governed in ol is particular cat-e, or by 
which ai.y oher c ai t ot imp achment s 
governed. The section of ihat w.rli uu wh ch I 
reiei- is the 798th. and r ads tlins: 

' TbeilO'-t ine, i need, would be truly ala^m 
ing, thac the common law d <l not regulate, m 
terpret and concr. 1 the powers aad du ies of 
toe court of impeachment What, other .x i-;e 
Avould become the rules f evidence, the leiial 
iiotioii> of crines, and the ai'plicat ons of prin 
cip es of public or muni ipal jiiri>prudtnc' , to 
the charges .gainst ih • aocu>eil? Ir, would be a 
mo>t exraordinary anomaly, tlia^ which ev ry 
cit z n id 6' ery sate, O' ig nally composing the 
Union, would be entitled lo the common law, as 
hi- birthiight, an i at once h s pioiector and 
guid •; us a citizen of the Union, or an olUcer of 
the Union, he v.ould he .-ubj ■tidtonolaw to 
no principles, t ) no rule~ of ev deuce. It is the 
boast of Kngli-h ju isp' udence, and without it 
the power of imp. a hm;nc vvotdd le an intol- 
erable 1 rievauce thac in trials of impeacti- 
ment the law ciO". rs not in ess iitials f om 
criminal pr secut ons before inferi. r court 
The saim^ rules ol evidence — the Sinii' legal 
notions of * rimes and punishments prev.di. 
For impeachments ar ■ not fra ned to aler the 
law; but to carry it ino more dllectu 1 exe u- 
tion, where t m ght be obstructed bv the influ- 
ence of lOo powerful delinquenis, or not eas ly 
discerned in the ordia ry coure of juris ict on 
hy re.ison of the peculiar quality of the illegal 
crimes. ih)se who be! eve that the com oi 
law, so 'ar as it is appli<-,ahle, consttntes a. nart 
Ol the 1 iW of the United -tates in their sover- 
eign chtr.icter as a nation, not as a toirce of 
jursdiction, but as a gu.d' aid ch 'ck, and 
e^p siior in the ailmieistration of the rights, 
dotiC' and ju 'isdiction conierred by the consti- 
tuti uandlaws, will havenodillicui y n ailirin 
ing thesmie do.-trine to be a plicahle to t e 
Se.iate as a court of impe.ichiieiit. i hoe who 
c.eno nee tec .mmon law as having any ap(di- 
caiiou or e.vi^tence in regard to iiie nation d 
gov rnmeut, must be, n cessarily iiriv n to 
niaii tain that the power of impeachment is 
iinti Congress shall leifi Itle, a mere nullny or 
that 't is despotic,, both in its reach .ml its pro 
ceediui?-. It is reinarkab e, that th first Co'.- 
gress, assemble i in Oct iber, in 1774, in tiieir fa- 
m'Us dec aration of he rights oi t e colonies, 
asseited ' that tlie ies;'e live colonies ae en- 
titled to the common law of England ;" and 
"that they are eniided to the beniflis of sttch 
of the E itdish statutes, as exisied at the timeof 
their • olonizati.n, aid wh ch they have, by 
exp rience, nspectii'ely lound to lie a)jplicab e 
to their several oc .1 and other circums ances." 
It wo. Id be singular euougii. if, in iraming a 
na lonal government, thatciininon law, sojist- 
ly i.e r to the col me-, as their guide and pro 
teeti'Ui, sh uld cea.^e to hav ■: an \ exis.inc as 
applicable to ih.- powers, rights and privil ges 
o. lie people, or the obligat. us, andtluties, and 
lowirs. of the departments of the nati.mal 
goverurt.ent. If the comm)n ;avv hus no e.tis- 
l nee, as to the Union, as a rule or guide, the 
whole proce dings are comphnely a. the arbi- 
trary pleasure o' the government, and us func- 
tion. tries, ill all its departments " 
I re.id th s, if the honorable court jdease, to 



show that in the trial of an impeachment berore 
the senate of the United States or before any 
State, th.- rules 01 evid nee are pi-e isely what 
they are in a criminal eourt or m a State court. 
1 he common law i~ ihe great source an i foun- 
tain to which we go f r all our inlormation 
on rules of evidence. And ihis trial, so fir as 
rules of ev deuce are concerned, is to be pro- 
ceeded wit'i pieo sely tlie same as if we were 
in a State court ith a j dge and a jury. 'Ihe 
same amount of evi lence that it would take 

I here to establish a crime will be recessary to 
e^tai) ish it here btfore tnis honorable court of 
impeachment. 

Starling off with that understanding, because 
the question cm not b.- undersiood in an other 
way, 1 procee.l to ih ; main qu stion involved in 
this ca>e. I beg leive to call the attenlio of 
this honorable co rtto 'he writof hab ascorijus 
for a moment It was a struggle for ag s in 
the Britih government on behalf of the liber- 
ties of the I eople, hefoie the writ of haiieis 
CO pu- wa fii.uliy established. A sort olo-itasi 
rigbttothe writ of ha leas cor us, wa-,perlnps, 
first conceded in the reig.i ol' Edward the Thi d, 
but thd'Ourts. u der he influ nee of iiariia- 
uieui, refuseil to • xercise it except in ter time. 
And not till the JOtn Charfs the Secoml was the 
writ of h b ascor usflnally esiah ishd. I wish 

I I Call the atieu ion oi the honora'ile court to 
au.Jther lact, lor ours is almos a litera cop.v of 
tiiatstatuie. m gr.tniing oi writs i no oiher 
inst .uce that I am aware of, in the British gov- 
ernment or in the State of Tennessee was there 
any pen ilcy imposed u|jon ajud.:<eorr fusing 
to grant a writ t xcept in a ca-e b ha eas cor- 
pus. When a writ oi habea corpus was wrn g 
from Ci arles ihe Sei ond. ic w. s provided that 
ii any jud4;e ;eiu-ed t< grant a writ of halieas 
coipu-, he would sufier tue penalty 'f that 
relusal. Whe.i th s gov rument seceded I'rom 
ti.atoi Great Britain and cstab ished ds iu.le- 
pe deuce, ihey eopied that writ of habeas cor- 
pu- into their con tiiution. This is tlie oii.y 
writ known to the State ol Tennessee where the 
p. n 1 y is allixed in case th i jiulge refuse to 
grant 'he writ. 1 tu n the ttenii.m of the hon- 
orable court to sections 15 and 17 of the Bill of 
Kig its of the Slate of I'tunessee. 'Si ction 15 
piovitles ihac "all prisoners s.iad be bailable by 
sulticieut sureties, unles for cap ta offenses, 
wnen the proof IS evident ortneprisum tion 
jjreat. A d the privieg; of ha eas corpus 
shall not be -uspen led, un ess when, in case of 
rebellion or invas on the public safety may re- 
qiure it." Section 17 further provules, "ihat 
alio urts shall beopeu; an l every mm for an 
injti y done him in h s land , g ods. p. rson or 
leput iiiou, sh. 11 hive leuiedyin due course of 
law, and right and justice a tmi.is ered wi'hout 
Sale,, enial or deliy " I ..dduce this aiitho ity 
to show that I am right — to show that the pen- 
alty is annexed ii the judge refuse to grant the 
wiit. In every "iher case except the wi.t of 
h.ibeas CO pu-, the court is n ft to it- own dis- 
cretion s to whether it shall grant it or not. 
Se ; ion 3729 iif the ode, sass: "it is the duty 
of the court or julge, to act u on such apnlica- 
tion instanter, and a wrongful and willful re- 
fu alto grant the wr.t, when proper y applied 
for, IS I misdemeanor inofti-e, besides subje. t- 
ing the judge to damages at the suit .if the 
partv aggreved.'' In "some constitu ions, as 
lor inst .nce, in thatof the State of >iew V ork, 
the amount of dam ges a uige is liable to is 
li uited iiy law to a fixed am mnt But in i en- 

essee, this is lei t to iiejietermined by the wis- 
dom and disc eiion of the court au'l jury. The 
constitution provides the.i the writ -hall be sus- 
pendc'l on only two accounts— that the court 
shall alwass he op n, without site, or denial,or 
delay. But und-r u e writ of habeas corpus, it 
is provided, that it shall not be denied under 
any pretense; and it is further provi.led, that if 
a judge refuses to grant the writ, he is guilty 
of a misdeajeauor for which he can be im- 



161 



poached b fore this honorable bo 'y, and di-qual- 
ilieil from h I ima; ttice, : nil that he m y be 
f-iii'd by the purty to whom he rcli.ses the writ, 
forila' iiijes ro whatever ainonnt tli jury will 
award him. I >fpeat that i' is th- mo.-t !^acr d 
w It liunwn undur t e itoustit tion, ad is the 
only I ,>tanc wliere a penalty i- annexe < t > a 
di-ieganl oC it, or im im 'o er lelusal o it 
on th p trr oC tile judj^e. T on. ii. -mU not be 
deiiie as I app'<'lien I, that prima /iieie. Jn ige 
I'lMz er was bnu il to giant the writ on the 
])risrntatioa d' hit pen ion wnich lias iiei n 
ivailioyui I wi>h t" lirinu: voir a'teiuioa to 
another faf't. WtunabiU inclianc.ery i-^ pr^-- 
se'ited to a judge, for :in inju' ction or attach- 
ment, if t e la s hargeil n tiie lillare sus- 
tained, although he uia persona ly know t 
the contary, h^^ is 'i()und lo urant it. v\ hen 
Mrit^ o\ certiori are prese ted to a '-ircuit judge 
althouiih le persiinaliy liiiow 'O the c ntia y, 
he innsi take he papei, mu.^i pcfoi m his .■-v\orii 
dity Mi(i urant it, an'i let the pioof come up in 
th- regu a way. So it is witii the writ of hu- 
bc:is corijus, whenev r a cit zen present,-, a ca>c 
thiitis inaile out by the consti' i tiun and laws of 
the land, if the Judge refuse o grant ihat writ 
he is triiilty of a mis eni' anor ..f office guiltv 
of a violation of his oath ;tnd i^ luithemore 
liab'e in damigiS to the party who^e petition he 
refuses. 

May it please the honorable court, I say that 
you iir sitting here as any oth r lourt, swo'n 
into liischarge y'lu • diiii s as jiidi;<s. And 1 
remark uga u, thai th- State — the sovereignty, 
tlie inajes y oi the people have a deeper inter- 
e t in granting to every c tiz n — b- i.e nigh <'r 
low, ri"hor|ioor, white or black — his r'gh sin 
connect on wi h the wi it "f habeas corpu , tlian 
111)011 any other sill 'je tcoini g within lierange 
oi; the le islation of the Stat- O Tennessee. 
It i-.-i mostsacre,'! wrii:, it is a writ that our 
forefathe s se:'ured ■ nly by dir.t of inces-ant 
and uuremittinr eff .rt and it stxnild "ot b 
desi-.ised or cramiib-d on. 1 hey ■ xtor ed this 
couce sion to their riglifs from tlie reliic ant 
gr spo'' espotim b3" Uint of iacessiint an I in- 
TDeiole effort. Jt could not longer be denied 
th;im They ware resolved i-o 'oa^er to wait the 
slow process of a cae hau . ing ovei fo' ter 
to ter , but to have the right an i fe power to 
restore to liberty and IVe dom at once, the • iti- 
zen who it would be shown, had been illegally 
deprived of it. 

Thi^ petition pres' n'ed t'lis question to judg^ 
Fr zie , tli-jt the Leg la ure hail been cad.d 
togeiher nj irooianMtion of his Kxc 11 ncy, 
the Governor, in extrao ilin-rv session, ^ofar 
a> 1 am co,icerned, I don't ilspute he light of 
th ■ (i veinoi- t-» call the Leii>liture tog-iher, 
although they had adj^mrned lo meet in ^ovem- 
ber. He had tlie right t-j convene the L'-gisla 
tureiu that exnaor .inary se-sion. Bu' what 
fiiriher do s the p^ ition show? Tha pe ition 
show- that the Uoue ■ had b'bs t' an a qtiorum 
and [hat having less than a quorum they passed 
a'eolutioi authorizing tiie Sne ker to issue 
his warr^mt for the arrest of Wimains and 
Martin; that under that warrant the p tit oner 
was a l•e^tedbyCapt. Ueydt, Sergeant-at A ms, 
or iiy his dtsputies— oroaf;ht lo ihe Capitol and 
con'inediis a prison r. And he charges <n that 
peition, that they had no autiiority lor that er- 
rtst. Upon that pe iiion tlie writ or habe-i^ cor- 
pu-- was issued and directed to C.pt. Heyd 
who had the prisoner in his ch i ge. It was 
served on Capt. He\dt by leaving with him a 
copy thereof, anl he was directed to appea'* be- 
loiv- Ju -ge Frazier, at the criminal court room, 
and ma^e his return iher t >. ai d to bring with 
him the body 01 Pleasanc Williiins, Upniihe 
return of tha''- writ, Capt He dt c anri' in, but 
di I nor, produce the b < y of Pleasant Williams 
That return isinsnbsta c-.this, ihacthe House 
of Uepresent tives (which had less than a quo- 
ru I ) notified Judge Fr .zier that thev cenied 
his j urisdiction, and that Capt. Heydt hid the 



prisoner u"der an-e=t by other oixb rs, and that 
he w IS rireiteil to pris nt this to Judge Fra- 
zier !is an excu-e why 'he i ody of ' apt. W 1- 
lia s should o* be preS' nte i 'Ihe case came 
on before Judge Krazh r. It was .ag ed, and 
lirni- uiven for ''eli eratio . ow% I wish to 
turn the attention ofth • honorable c)- rt to this 
pi ovisionof the coiisiituti n und- r whudi it was 
clamed that, in the a''senee of aiiv 1 w— und 
sniply under a ru e. th y tiad a right lo make 
'hati>"d r I wish th hnn- r ble c'urtto hear 
in mind thut th con iiuiio ■ of the United 
State- s diflereni fr- in 'he const tution of Ten- 
nessee i le aid o the i. att r. ihe constitu- 
tion of the Unit d Suite~ provides thai each 
House, hy its ownru e. " ay enforce theat end- 
anee o its absen' nieiiib rs This is i ot the 
const tution of ihe St ite of Tennes-ee. I read 
se tion t e 11th, a- tide 2d, of the con ti^utionof 
the St:4 e of Tennessee. ;.s lollows : "Ih.- Sen- 
at • and House of i;ep'es- nt i. ives. whc- as- 
semb ed, shall each choos - a Speaker and its 
other officers, ^■ judges of he qualifications 
and ele. t on of memb' rs, aid sit up n i s own 
I'djournmenis from day to day. Two t hi ids of 
each House si ab con litute a quor mi to do 
business; but a sm der number mav .n journ 
from day to day. and may be authoiized, bv 
1 w, to compel the attendance of absent mem'- 
Liers " 

Now, I assertaproposit on which I thiik will 
noi b- denied, that les ihan i wo-' bird- could 
pa s no law. This c-o stitution does not au- 
teoriz less than aquoru-- to do any Inisiness, 
only to a journ from d y to day; but says they 
may lie authoriz- d, iy ia^v,ti compel the at- 
t ndance of absent memhers. The iramersoi 
th s coiistituti n saw fli nor to Lave it in the 
br as-; of the tdghest h- use. by a rule, to im 
prison a citizen or member, but they gran ed 
to the Legislature the power to d.i that by law 
ill the usual way, by h iving tluee se er 1 read ■ 
ings in eai h House, and being siyned by the 
Speaker And when that was done, then les> 
t- an a quorum could eni. rce the I w. Hut the 
Le-;is aiure Oi Tennes-ee have neve • seen tue 
nece-sity of the thing, I suppose, an I m ver, in 
the hi^tory of the s-tati.- has any su' h law been 
passed I'hey have been trusting to the honor 
of the me libers to attenti, and no law was 
pas-ed beiore t isdifOioulty came up. That sec- 
lion «a}^s 'that all lourts sh II be open; and 
every man for an injury done him in h,s lands, 
goods, pers in or repntation shall have remedy 
oy due cour e of law, and rb-'ht and justice ad- 
ministered without sale, denial or de ay. Suit^ 
may he brought a^ai'ist the State in such nian- 
ni r and in sucn co irt, as the Legislaturj may, 
by law, dire t." Js'ovv, ist ereani judg in the 
State of Tennesseee who will s y that the e is 
any power in that irrant until the Legislature 
enacted a law? It is also provided in the cou- 
stiiutio ' that the St te could be sued, but no 
law was ijasscd until 1855, i heiefore suit could 
not be iirouifht. i refer to the ase o the .-stite 
in EiroragainstCru chtield's Hxecntors. N w, 
il he honorable court (lease, lake these two 

provisions of law, wi ich, it is s en are almost 
i enucil. There is a decision of the Supreme 
LOiU t of Tennes < e Hi on th- case. Although 

n the latter part of the section referred t > in 
the Bi 1 of Rights, it is provided that suits may 

he brought against the State, ^tiU, no awver of 
in eiligence was bold enough to say that it 
could be done until the Legislature passed a 
law. The constiruiion provides that nssthan 
a quorum may be auihorized, bylaw, to e force 
atiendii'Ce of ab=ent nie b rs Is there any 
niiu bold enough lo swear that theie was any 

aw? If SI, where is it? Isiher any man bold 
enough to swear that a ri^soluiion of the House 
for Its own government is a law of the land? 

Suppose a yp ecedmg session had rues for its 
own government. Is that a law of the land? 

Thev mii:h have passed a law an horlzingthe 

Speaker, if there were only two members, or 



162 



five nrmbpr's, to issue his wavmnt and biina: in 
the a' S'Mt menib rs bu(r they parsed no siiili 
law. Now, I ask upon what aiitho iiy of l+w. 
un 111- the. constiuiiion. fle-isant Wlllians was 
arre-te I nnd imprisoned? Jioue upon tiie lace 
01 th eavtli 

'J he a gument hasbef-n addre sed to this ho>i. 
orab e ciurt, that in ail probabi ity tw -t irds 
of I lie iTieiiib rs pres ■ t" miglit act. If sworn 
repie^entiitives are willing to mkti a>i o.ith to 
support (he rous itution. and right in the teeih 
of that constitution, tosa tha' lodoes no mean 
wh t it .says in pi in Knglish. ihen ih y can 
miLethat sore o an apologv L'ss than two- 
thirds canno do bn.siness, and can pass no 'aw. 
LB^> than two-tldrd- can make n > ■ rder that 
any upr.yht, iniellij^eut and mlightened court 
en deoiaie to lie la'-v. This con titution tells 
the court ho .v to act, but th s law must be 
pased accor Img t, ■ Liw on three eparate le d- 
in^s, ;ind receive the signature of the Spe k(.>r, 
theo the i^ons itution says it is the l.iw of the 
Imd. ih' ery sa'ne instrmitnt declares tliis 
in pi 'in Englis'h. But if it is thought best, and 
lb lieve it is best, to pa^ a general law, then 
you can ent'oioe the attendance of members, 
and cm con'er > ower 0,1 some lers "U to "ring 
thmin The 12th section reads "Ka- h House 
m y deteruiine the rules of its pro ceilings, 
puiii h iis members for d'sorilerl ■ be'iavi t, 
and. with the concurrence of two-thirds e.vpei 
a membtii', ait not a second time 'or the same 
off nse; and shall have all • tlier powers necis- 
sary f r thi^ bra ich of the lA'j^isiatuie of a free 
State." Un e s you iiave a quorum, unless you 
are organized, V'Hican do uotting more than 
adioum rom d'y to day. But if yaihavea 
quorum, you can det r ine you- rules of pri- 
cee ling- and(jun sii members for disovd-rly be- 
havior Wit 1 ih- concurrexe of two- hir is, 
you cin ex el a m luber, b a unt a >eoo d time 
for the s .me off nsi-. We have hctrd someihing 
upon ihat s bj ct, and prob.ibly will again — 
about the powers and duties ind prerog dives 
of ihe i-egi lar.nre of a fee -tit-. No man 
prizes th s more h'ghly than I )■ , t)ut I am try- 
ing o ad res myself 1 • your understanding as 
to what t e Hoas can do and u hat it cannot 
do. They c.iunon do any hing orbid ^eu by th • 
constitution. Tliey cann t do ai y thing not 
warr.uited by t e con titiit on. The con tdu 
tioii le Is IS that they may be authoi iz^d 6(/^aw, 
but ihey cannoi do it until that la-v is ass d 
To how that I am right uiio that subj ct I 
wish to rfad irom C s li g's Manu 1, [counsel 
hi re re d fCC ioi 'J57.] Now, an human lan- 
guag- ma e this thinij p aiuer? Here is this 
leirned comme ta or w ose motives cannot oe 
que t tm d; be t i- es up th s Vrovi'-i'U of the 
costi ntons o various >tati s in which a les- 
num er th.i . a quoiuui can cxerci-e no power 
nntil a liw h >> bi-e > p ssed. [Connsei h< re 
read sections 361 and 264 from Cu»hi g's Man- 
ual j vow if the ho oraii e couit p e se 1 
have read these 1 rovisions of the law in ri fer- 
en.c o ihe vviit oi hab as corpu-;. Now, 1 ask 
tijjon what 1 w. lium nod vi.e, it is en orced 
in the sti e of Tenae see Are we 10 be told 
that the rules and customs of that rbiirary 
power, t f hrit sli t arlunnent are t> be the 
ru es t at sh mid guide you? You h ivi' a writ- 
ten con>^t tutiou liat hrows 01 and condemn- 
tne d •>{) tu; anil tyrannical powers u.xe cied 
by t e llou e o. L rds ami Hous of Commons 
\Vhy. what was your D claration of Independ- 
enc • for? It wa to t row off those chaln~ im- 
po ed liy the Hr'tiSh Parliament \N hen our 
lor.-fath rs came h- re a d made tlie constitu- 
tion, they unde took to ji otect the ciiize • in 
his iife, "iberty, and propirty a.ainstthe 11 !• tu- 
ations of t in-, against th roaring stir es o 
par y passion, an i t it; a.igry aves hat might 
Uttsh over the country. Thty have undertaken 



to guard the rights of the people by a written 
constitution ; and they sav thus far you shall go 
and no further; and any judge in the lani who 
does I ot stand up and pi- itectthis great eha'ier 
of human liberty, does not deserve to be called 
a judg- . Can you impeach a man for doing his 
duty, however mu> h it may be again t his m ill, 
because ne has firmness and L.texrity enough 
to St mil up to his ■ ath and t > hold the chai tfir 
of his country's lib rty m his hand and ■l: his 
duty? Is he to he scoffed ami spurned Lecause 
he does ihis in the name of the State ? 

Now then, a re urn is made to that writ be- 
fore Jmige Frazie . What wa admit ed in the 
argument on (h s question? It was admiiteii 
that the House had no quorum, that they hid 
arrested thi se members. The journal shows 
tliat when the arresr. wasorde;eii, they had less 
th.naquor m. But they pa s an ther resolu- 
tion authoiizing Capt. Heydr, to retain under 
a' rest all the refratory members aire.-t. d by 
theii- order Wh.t was Judge Frazier to do? 
He was bei ween thtiipi er and nether millstone. 
This consi itution says that the writ of ha' e is 
corinis is a cotistitiitional writ, that it shall not 
be denied. Another provision sa\s that if \ou 
refuse to grant this writ, you shall be guilty of 
a niisdenie nor. nnd sha I'he iable to uani 'ges. 
Kut the Legislature never passed au) law on 
this subject; tliey trusted to the honor and in- 
tegrit> of its members. What did Judge Fra- 
zier iiecide? He decide 1, in sub-tanc'-. tda' the 
memb rs ought toattnd, but ihtt les- thai a 
quorum was i.ot auttionzed by the law 01 the 
la.d to enforce their atten 1 ince; and that tln-ir 
arrist, Ihereore under these cii cunistances, 
was a violation oi' the piovisions of the cons'i- 
t ition, no law having been p.issed conf rring 
on a lower numb r than two-thiras ol' all the 
nierabe s, the right to compel the attendance of 
abseniees. T ac distinguis ed commentator, 
ftlr. t^ushing, says he way right. Wtiy did 
Judge Fr .zier adjou'n ov <■ the couit af er ar- 
gum nc on she ITih and 18th? In or er tluit he 
might look into ti e hooks. He is su-tameii by 
M . Cushing and there is no autiiority t ■ the 
contrary. I deny that the prosecution on the 
part of the i!*tate can show a single authority 
where less tha ■ a quorum had any -ucii power. 
The con titution gives the Legis a uri- the 
power to imp ison (jersons who are not mem- 
bers lor disorderly beh vior; but the consiiu- 
liondois not authorize th in to arrest and iia- 
p' ison members unh-ss it is done ' by aw." 
But it is sai I that thereare other provisi ns here 
I hat amount to aw; but J refer again t > s ct on 
l;Uo theCodeof leiinessee. When Mr. Cooper 
and Mr. Meigs compile 1 tnis Code, they thought 
it so i nporiant h t the constitution shoul be 
plainly pr^ sen e 1 to ever dnzen of the Sta'e, 
tliat they made a i-om|iilation of its piovisions 
copied lit rally, lot omitting the dotting ot an 
I or the crossingof a t, so as to present the consti- 
tution at one view, to the citizen, s > tnai every 
intelligent m in could unlers audit. But how 
can an inte ligent lawser come to the conoul- 
s on that It i- an euaciment of the L gis atiire? 
How could any Intel igent lawyei' stultiiy iiim- 
self so as to sas that this is an enactment of the 
i-eg'slature? Bn. the constitution crea es tne 
Legislature, If the Leg slatu e undnaKes to 
mak a ia.v they s.iy: 'Be it euacti d so and o, 
section so and so, ' But yet we are o ne told in 
argument .hat .his complation of th. coustitu- 
ti m is a law, bui i has no beenc'ianged. If the 
hoi or bl 1 ourt please, it is s mpl\ r dictiiotis to 
say ih it it was ever al w. Mr. Meig^ and Mr. 
CiOfjer neverdreani' dof such a hing, .ml until 
this iiti;:ation was jiot up 1 never hear \ of s ch 
'4 thing It was not intended to be law Ijut was 
for thi- benefl of the peopl It sa>s, ov r hire 
that the Legislamre may he authorized by law 
to compel the attendance of absent meiubi-rs. 



163 



B'ck ther" it say^ the verv same fhitiff. Mr. 
Ciisiiiiig- says thai iimler your CDii.-ntution, you 
can ilo no ^u h thing' until i Uuv i |insi;('l in 
th vvity that lausare enact- d. Th t is whii 
Jmlge Frazier deride ' ; and yon iire askfd now 
to decide Oil your oaths in i onrradi'tion to Mr. 
Cn-hi'^, in coitradiclion to Judge Fuiziur, an , 
as we thinli, nc ntriii.iciion torf:i on and com 
mo I sense, r.hat ihej iige whs wi'on^-. Mii.y it 
pi a-e ttie <-onrt I have ma<ie th s ar ■iinient t ■ 
show hat.Iudg- Fra^ er's decis o • was rii;ht; 
Wii. ther I have s lilird i singl nn'mijer if thi> 
con t rno',I have made an arg^iiiniii' that i tx'- 
li. ve t • I esonnd and irrel'rairalilc; a dl Mistbe 
siiigiili ly st'ijiid ii I shouhl s and here Ijetbre 
this court md ni ke any other argument ilian 
wliati b licvetobe i igiit, when I know ihat the 
wiioi (let d's or I hese (ir.ici edings willieoni) 
lished and di- lilmted lar ,ai ne tr, ihro ghoiit 
the wh ^1 • a' d, mh passing into hi tory. will be 
a record ol the honor or a niomento cf the in- 
famy o thos- |) irticipatiug in tliein acoor mg 
as trii h a d justice, or tnejudice and |>a' t> 
spit, may li ve. gu dcd us m our sev.rn 
Courses. 1 have certa nly lo m oh re/aid tor 
my h iiacer and g od name to pnr-ue so Catu- 
it'O's a c ur-e. What I say to th s c uirt will i 
prob blv h; s anned -nd ri vieved bv learned 
anddi-tng ished jurs s of thn cou try; u t 
on y nf ■ BiuiCbsee. b t el>ewh re. Will the 
ciiu' t su|)po>e th:it I stand he'e to use sophistry, 
to nullify in \ self, a d to miike myself look ri 
dii-,1 1 us ii for- the o Id? I declare to you 
th it I ^t nd h 'le speakiuii vha I iie ieve"i> 
fore my <iod and m count y a theiawofthe 
land ndtlierg t f this defenduur. lam win- 
ing to b - ti led b Ihat ti st. I anr> wil'in,' to be 
tried ii 'he learning, exper en'-e and in elli 
gence of ihe countiy, that e: n view ihe^e qu s- 
tio s a'mniv and disijassioua ely^, devoid of 
excitement; that can rise ab ive the turm il ot 
striie, ;ind the angry waves of pa^ i n .nv; look 
to ea on .ind com hons nse. Aga n, if th • h>n- 
orahle court |>lia>e, i- judge Fr izii r to form an 
ex'cption to tlie treaime iiaci'oded to .ill o her 
judge n * mi a ciicuinstances, throughout the 
civi zed wo Id? 1 is any u an wh • h l^ re id 
his ory or . hoi tolernbly conversant with cur 
re t vents, whe her he ever i earl of a judge 
hei g im e icied befor ■ for an e ror m judg- 
ment? Sut'pos I am wrong, suppose we are 
ma ina ■> ridicul us record for ourselves s 
cou' sel here lief>re thi- hoiiora'le court; sup- 
po?e we, .lie t > L"-!) out lothe world as mere t\ r es 
il the f tW, that we oon't quite unilerst I'd the 
pri'mef. that, we don't iinde stand ur cins it i- 
tiou, tha we don't unrlers and our g ve nnient. 
th we don't u,neersta dihi laws oi thelnul. 
I as'i, a;^ai , is the e anv case to e round in the 
Uni ed f-tates or in Eailand, vvnere :• j dg ha^ 
been inipci hed for error of judgine t. I re- 
peat to you again, that just as con-c oils is I 
feel ihat sooner or la er I shall have to anpear 
before the -In g ; of the univeis s > a I con- 
sci us that Judge Frnzier's decision is right. 
I hi judgment is right i makes no d "'erc-nce 
about the motiv- ; tie has d uic a 1 ttiat the law 
required? Bui suppose his judgment is wrong, 
and suiip se we re wrong, an ne be im- 
peach (I for t lit? those v\h> pref- the eha-ge 
know tha' he could u.it, loi thev sseited tha' 
he willf liy, maliciously, -iloniou-lv, ml 
con-' ptl is-ued he writ, ills h rged Wiliams. 
and is-iiel his arr.mt iig.iiuNt i aptain He\' t 
They knew t at he coul I not h i n peach d 
■withoutcorruptloii. [Judg' Gmt here rea ' a 
poriono the decision delivered b\' hief Jus- 
tice i\ent, A 1 en upon th' Supreni- liench ot 
the St le of New York, in th • c ise of Ya'es v. 
L.nsng 'eginning at pa.'C 28'J vol. 5 Jom 
son's 1 eports. He aiso read fiom 2nd Bla k- 
st Mie, p 114.1 1 Now, may tpleaeih hOiOra- 
ble c ' r-, t'le reason of thn wi 1 he apparent. 
So ' e mi mbers or this court b long to ihe, le al 
p ol'e siim. .\ judae has sworn d ities to per- 
o rin, he hj.s his sore places, if they can be 



ciHed f^ore places, he can judi'^ially, know no 
man. Trie d ' r f e, he musC take the law as his 
guiile jiiid end .vor to find out wii'it is right It 
uouhlin eel beer el y, if we had a i overn- 
lueiit ha' w ' uld pu'M-hajndge f>r doing his 
duty The juoge ^hould liot yiekl to jiopular 
OiUnion. VVhiilina he i opulir to day may bo 
u pop lar to-m r'ow. It t e judicijiry h.tve 
so far Idrir ttC" tlumsclv s a- to turn from the 
1 -wand loo- lo out i e pressure, th n hnniau 
li ar y i- g' ne. Ihe trai ers of our g"ve u- 
mencinteniie- that the judges should look to 
the I iw, and t ai i- why they iirnvded or the 
sancti y ol an o th. and thai is there sou why 
\ou doff yo r Sena li il oath and take on the 
oath \ou have tiuenhere s judges, th it the 
aw a d the evidence shall be bend and he 
law admuiisti re i i > it„ inirity. If I know ihis 
c-'ii t I 111 war anted in hi lieving that ev. ry 
member can ri^e to t le dignity of the court and 
1 oii to the law nd h testimoa , and trv to 
di-chai ge his dn y o hi? G d an i 'oh s i ou try. 
VViiat more could Judge Frazierdoon that sub- 
jo t. It is -aid cbeie 1- a consp rac ? I- tiiere a 
member of ihis court tha' can lay his hmtl on 
his heart and appeal to the living God and say 
tnat that (-ons|)iracy is proven, or thatJu'ige 
> razier is C'uuucted wita ii? They h.ive sig- 
nally f ile I to prove this. It was a m re chim- 
era, "exisfing only in the brains of ^ome persons, 

i ■ some of the m wsiiapers, but Judg'- Fra- 
zier i- not proven to have had any coiinection 
with it. \\ h If witness snys he had iiny con- 
nection with It? Whit witness proves h in lo 
have I eeii m anv caucus or any meeting? Is 
there such poo here, that any member o this 
court cou d sw ar and put it on r cord befo e a 

uiliz'd and intell gent world, that he w iS 
guilty of such a c arge? Now, is the c urt 

1 ome own o lo v, is there any man who st -'mIs 
h re with a law license, in his p 'Civet, so reck- 
1 s- as to >ay that here is any prooi wha ever, 
ill connect o w th ihi^ caartre? Suppose yoa 
shoLil'i hi lie^e me to he a siick in ttie 1 w I ask 
you to point out a witnes- that proves one s n le 
improper act on ihe pirt of Jud.e Frazi r. 
V4 hat wi ness pmnti t>( a circumst tnce -bowing 

orrup ion i ollice? None, whatever. Tne 
frainers. of our j^ove uni'-nt wisely provided in 
the power to iupi ach that it shoul'^ be J'or e.ir- 
rupiiou in ollice; .md I wi>h to turn \ourat- 
teu ion 10 thit rovi-ion of the con-i iiituton. 
Ill flfth ariide of tie con>t tution i-ro iiles 
that "The Hon e oi Repre-en atf.e? -ha 1 have 
the sole owerofimp achment. * * The ov- 
eriior, Jutlges f tiie Sup.eme Co"r', Ju ig s of 
ill erior cou ts, - hi cillor,. Attorney^ for the 
St t , and 8 cr tary of -t,.te, shall be la ile to 
impeachuie t when verthey ma>, in the i pi i- 
ioii "f the lion e of Repesentatives, cmmit 
any crini in iin ir othc al capacity, w h i h may 
require di qu liti at on." Whenever a ju'ige, 
in his oMici 1 capacity, has committed a c im?, 
which, in the e.^tiin .tion of the House of Rep e- 
-ent.tive-. requne-- removal, they can imp, ae.h 
hi .. Tl-e peiiat tri s mm; i f> utl gu Ity he 
i remove and disqua ified. Wha then? Tli n 
lie i> to be tiieii ben r. thj ordii ary c uri> of 
the CO ucry fir that crime. Now, sup ose you 
was to lind him guiliyanu remove liiiii ironr 
othc , and he is lurnet over to th'i criminal 
courts to be tried; I ask you, to be tiie for 
w 1 ? VV.u h o- r quired to i n ve n s in- 
nocence? No » r. Th. i;(W p esumes ev ly 
ma to b ' innoe.eiit til he is pr yen tih rth- 

r ise. Il there is any ho es doub la the 
minds f the jur . he pr.soner is intit:e to 

11 a qui ta But, I ask you wni re s th re 
a si lilt par ici. o; proo in this ca^-e? Tiiere 
IS ot a witnes that ints to con-pi acy. To 
coiiv ct a man I consp rucy. of crime, a .d cor- 
riiiition, upon sucu p o- f as t Is, woul bt a 
lo. 1 evi , st in o the escutche n of the 
State and the records of Ihis co'irc. But tms 
court have no: lortotten what right ano reason 
a e. The human heart is proud of justice ana 



164 



libertv, and 'ts rig'nts A fl can a man be fon 
vifteil iind consigned to i-l'a y and isgrace 
by nil iiior"^ te-tinioiiy than this, by mere wtii ii- 
sic 1 passion ami ang r n\ the ub-enceuf p'oof, 
and deviiidof reason? Again, if the ho oraDle 
cour I leii>e. what has Judge H^iMzier do' e? 
Th s petition for ihi' \vr t of n b as coriju- \va> 
pveseii e i to hi ; he h id ^o act upon <t. \V il 
not t V'-ry m n oi you agree with ni« iha'^it wd^ 
righ f.M him to do what his h nesr, convictions 
01 rieiit anil duty required? 1 . upn-heHdHve y 
memiifcrof this court vvi 1 sav so. If jou should 
believe that Judge tT:zervv:i> mistaken a to 
the law, 1 ask >ou what reason ■ ou nave to bc- 
litvr-. tliat be a"t d cornip Ijf w hen th^ i;ite 
terrilib' conliict arc, in the co mtry, the judg^ 
quitie'l his i)U-iness a d ok. these inplo t-u- 
cans- o is goVi;inineiit auil his fl ig, and he 
neyer 1 rsook .t in its d ivl^est hour of trial anil 
dang'-r. W^hen, on account of liis pos tion and 
bis loya'ty to his go enuneiit, he is reduced lo 
abjert ciicumsDancrs, to poverty and rags, and 
has tn fl> from his home. Jtid his lamily us t" 
lollow iiim, and when the military governmei t 
under Mr. Lincoln was trying to be rei;6ii- 
struc ed, her he wa- one ot ii.e tiist men to 
takeoiUoe, when it was unpopuu r and dangi-r- 
oiis to ilo so; to uphold and m dntai • ih- flag 
and inti g.ity of his < ou tiy. He was the first 
o e to -t 'p in to sustai the State givernmeu , 
When it was dangerous an I unpo u ar ooccupv 
su> h in a itu e. U -m n :ict witiiout mo ives? 
Hf was ne of the fir t to ral<e oitioe: tie iiM 
not come n at the eleventh hour, but, he c:imc 
in at a time ti-iat tried men ■ soubs; he came in 
at a unie before the, confi.ctwas i.e id<d, iid 
ende ivo ed to r< cons ru. t the St.ite j.o ern- 
meiit VV^hat motives di i he have t) ciiange 
his former opinions and fab t ? I ask >>iU 
Wh t motive i e couhl . avc to t rn round 
and t''\ to destroy your government? None 
upon t-ar h. Rational men • ou't act ui nont 
,1 olives and there \va~ <\ ryimlu'cm nt lor 
him to st.in ; Uy that gov- mm nt lor hos in- 
terests lie had so inuuully bait en in tn h Ui 
of lis trial aud danger. .\i.a when victory ha 
perch ;d upon its bm er, ad whi-n it^ H-a 
"vvaite fiiim oeean to ocean, vvnen arms were 
laid down an 1 peace was restored, was there 
ai.y mo ive then for i im to fors.ike his flag <and 
his goiernment and go over lo the fnemy? 
But tut-y say he wan ed to break up the 8t .te 
governuieut by impe li g legislatio i. 1 .nn 
not wii i-ig to say that that man is a tr.dtir 
to his conn ry who Ifcth.; mountains ot E st 
T.-nnessei-, who lelt lis wi e an I his childicn 
when reb 1 bayonets weie thick around him. 
who pas-cd over the monntiins a d 
■we t tu the giivernment he loved, and 
shiircd its fortunes and its misfortun-'S, 
and periKd his life tnr iis de ense. Nor do 1 
aoubc c t; pairioiim of Capt. leasai't vVil- 
liaiiis ti-diiy more than I did two y< ais ago. I 
don't d- ubi that he is a pa riot, that he nves 
his country, tint he d:d no like ih po icy that 
■was being pursue I here, and staed awiy. In 
that 1 til. Ilk he did wrong, nut I am not w Hing 
to si e a man who periled nis li i- and his all fir 
the defense ot the flag of his couu ry, tradnced 
and SI niered, nor ti hi ar it aid that he is nut 
apaiiioo i.ecause he i-annot subscribe to every 
thing that everybody el e wants h m to. But 
■was th le any issue pemdng nt ihis time in. 
•yolving the di-rni»tiou or the braking up oT 
the ■•"tate governm nt? 1 think not. The C'on- 
Stit'tum nat Amendment, wa- passed. I had 
thuught hat the iiaie governmiMU was inan- 
gU'ati.i in I he tpiiiig <;f 186. I had iho ght 
that >ou liad alt the machinery o St .t ■ g v- 
eriimi nt in motion, an i ih it the orsra iizatio i 
•was complete I a.d not understand ib^.t 
■wheih-r, na pariicular day, you ratified the 
new Con titutional ^\mendieut. proposed l)y 
Congre>s. or whether you reiused lo di it that 
eitin r altenia'ive could involve so disas rous a 
result as the breaking up of the State govirn 



ment:. I think the State government was safe 
and srcui'e n fitha c ise. *Vhy. j"^ lu misht 
as well -ay that iho.>e Governors of Northc n 
s.tatt'S who lefii-ed to ca 1 t gether th ir e- 
spectiv ■ Legislatur s lie'ore t le re ubir time, 
tor raiif ing he Const tution 1 mendmeat, 
were se king to break up the Federal tiovtrri- 
m nt. It implied nothing more ibau a contest 
be ween riv tl par i^s AVitn thiti o test I have 
no hit g to to Capt. Williams choose to ^tay 
away; h wa aTf-ted with ut autho ity of 
law. and in violation of th ^ cnn-titiition And 
why? I'.ecause it might hn unponul r to do so, 
s on! 1 Judge Frazu-r viel ite hi- oath to t;ie 
->tate ati'l sutler h mselt >o be imijeachel and 
su jecte I to a civ 1 suit tor d mag s, f r not 
ranting 'he ivri? Why, I say, should -lulge 
Frazter turi a ileif ear to a, m n v\lio had 
fmght for lour yeir> in the heh-'lf 'f his 
rouutry, w li' had slept on the tcnti d fill, but 
who dit not happen to be in nccord with ihe 
gov rning power^ in referi" ce to a quis io . ot 
pu' lie policy? J say that if he had done it, he 
wdu rl hav lieen a holio v\ -beudi d m in. and 
tliat he o ght to hav>- iieen imiteached and iin- 
pov rished if he h d yielded to those who 
c.uinseied thi? course. 

I have said thus mu b. if it please the court, 
to how lb it Jndg ii'razie did his duty, ihit 
he dcci led thisqiiestion right Thatis the u es- 
t i.n lor you to di-cide I know tnat you have 
the r pn at o ^ of t.'ds man. ou ' av ^ hi> h mor, 
y u have is right lo hold oflice you have not 
only Aiv reput tion biu that o his fam ly, in 
your hands. But this c untry, this govern- 
uieut, and thos • 'o c me, v^ilTi iujiidgnent 
u on ' s 11, and thf great God o th i u iv rse 
wit judge ns a 1, and ihat before long, i flrsu 
ber,.mjac,u i t^d wi h f at man twvny i lit 
years ago (ioing ver that length of tine, 1 
im a'moni>hed upon reflection that he and 
tW'ioh rs aretheonU two living mini • r-. of 
the liai' as awyers or a- judges. Iron; Knox- 
vil!e to the ' umber and Mount.ins who were 
then n I ha staj,e of ai-tion when I lirst btained 
a law 1 ccnsr " He has mainiaiied a good and 
unbl mi>hed ciaracn r. No .. an in tne .-state 
of Tenue se-' can . rove a better charact r; not 
only a character for morality, Init integrity in 
all hi- relations in life botii pub ic a d private!, 
ofli -lal and oth rwise. Now. it the honorable 
court pbase, a f iv words and 1 am don ■. tor, 
pt-rha s 1 have detained the court too long I 
linded 10 the fa 't that he must haV'^ cuiimit- 
trdsomecrim- in is oflicial ciiiacitv .o au- 
tioiizi nis impe :ch'neni. Am lb rue out in 
tnat suppositi n? I w sh to direct you'- atten- 
i .n 1 1 a 'ew things by way of pie.licat ug an 
argu nent lor m\ associates. 1 turn o the oM 
constitution of 796 [ I he sp -aker he.re re-id 
from he old constitution.] Uude thi constitu- 
tion I f 119 :s line cases of impeachme'i' came up, 
andgeneial'y grew out of party p'lliti-s aid per- 
s'ual pr'iu(iice-> Much time and money had 
bee'i sp nt in trials of imp achment ad ih re 
n d be"n no c nvction in Tennes ee When 
the I o ivenlio I if 1831 met to revise the conti- 
tut ou. tn y intended to put Oiit of th • way 
s ch flimsy pn t -xts. In ihe con-tiin ion of 
1«.S4 they i'O fine i .mpeachment to lb- tVov- 
ern r. Judges O' the Supre ne Court Judges 
of inf rior courts, (chancellors, .xtto'ness lor 
the state, 'Secretary of S ate, and to such c imes 
as woull jus ify remov d from olHce. If Cir- 
cuit Judges, Cbani-ellors, Attorne s-G n^ral, 
loniiuitted a certiin class of mi demeanors. 
tiioy night be irdict d n acir.'Uitc ur. and if 
fouivl guilty, rem >ved fioin oflice. The frann rs 
of the constitution contlned inipeachn 2iit lo a 
few otUcers onl In the constitiiion of 18 1 
lb : woid "mi-di meanor" is not use I as in ihe 
(Onstitutio of 1796 I'hey intended to con lii c 
it to i.e highest cr m s, such as wo Id j"S i)y 
impeachment. To show that I am right, I will 
turn to the sixth scv tion of the consti ution. 
The framers of the constitution well kuew that 



165 



a crimp must be committed in sn official opac- 
ity, wililiillv and corruptly, t'jiis il'y itrpcacli- 
mint ; 'Hid they siw th t oIUoits mast be gii ty 
of n)al-pr:icti('es and otber tilings th;tt ouglit 
n t o be t.'lerat d in t i' jiidici'l cli racti r. 
Suppose ajuiseis imbecile, or is a drnnUard, 
or III gbcts his I uslne-<, rrfn>es to liolil bis 
couts "r anv thing iif ttiat sort, then they have 
provi ed for his lemo al Uiide tlie obi co - 
Slitiu on, you cou d lemnve a judge for any 
thi g ynu pli-asi d, but uiide the new c 'nstitu- 
ti'iii, impeachmen s a e coiilii ed o c.riires of 
ti e hi best character; and whenever the judge 
coininittMl one of th m, he mn^t lie impeadi tl 
Now ill th s case, what crime is charged? Pur 
hips t is argument can be better addi>'ssed to 
that portion of th. court who are u embers of 
tbe hiir than to thos-e who a>e noi at all conver- 
sant wiih legal salutes, and are not ac quiiini;e ■ 
with the pri)ceedings i f law. What ollensi is 
char^icd lure? Thev say th it he w llfully. ma- 
il ioi'Sly. felonioiis'y. and c rruptiy. ioued his 
writ 01 ha eas cnrpus. How cou d fe'oiiy be 
predic itfd upon such a thing? Whcr'- is the 
proof? Now, ihny say the judge disiegardi-d 
thi- retiun made by Capt. Ileydt, and disi h irged 
AVilii ms willlully, maliciously, ff lonioiisy, 
and corruptly, ami that tlieref.ire h^' wa^ guilty 
of a high rinie. Wi at crime? In whit b lok 
wdl yoii And it? I will jigrte that it is wro' g 
lor a'liidge o be c rru t In any mi g, anil you 
will agree to it as right, lor a judge t > try to do 
right under all cncuiiistances I believe we 
ha '■ ha t sad experiences of he evils incurred 
by a disregard of the constitution and the 1 ws 

ihe Ian tha ou.htto te cu this genera iou 
and generations f 'r all t me to lom . a -aliitary 
le.-;soii, o wit: that the constitutmu ami la \ s of 
the land should bu obeyi-d, a d tint he ri;;h:s 

01 the people snould n< t be di>r garded. What, 
crime h IS he committed? I cauuot intioihice 
to you the proof The d fendaiit cmnot prove 
a u jiative But I say, so far as th s esti ony 
is concerned, Judge Frazier stamls unst dned 
and unspotted to day, as he evi r was. They 
tnew it was necessary to pit in the wor i felo- 
nioii 1-. But in ti.i-i case it was impossib e lor 
it t > mean any thiv'g For a man to . oiu nit tel 
ony in i-suing a leg d process ! He mi . ht com- 
mit 'e ny by utealiiig a le^al I'l-oces-, but he 
could not d> i by »«« Mi^r a egai process, ihey 
sa that he act: d crue I toCapt. Ueydt. 'ihen 
my d stiuguished friend on tne oiher'side w n s 
to make sport of his kindne-s t.) Capt, Heydt. 
It c uld ue ver.N reaonably explained by thiug- 
thut occurre I be ween him auU (Jpt. Jieyut 
in tinii- that tried men's souls, i hey tried to 
make >p rt of his ofl'eving to lend Capt. Heydt 
ten d lars, and sa> that perh i: s .Tmlge Frazier 
did not want to punish hun but Judg ■ Frazier 
belie. ed tli.it Capt Ileydt was a G mian, had 
foush! in t e Federal a- my and hadioi e what 
h supp sedwas r g't, an i tne efnre did not 
wrint D' impose a penalty and forfeiture upon 
him Bu til y sneered at Judge Frazier ne 
cause he nff red to luan hiir. the mone\ . But I 
wani to show you w ai, he had a right to d • I 
will read section 3754, irom the Lode, on the ha- 
beas corpus ''JJisobedieiiceoi ihe oiiginal writ 
or any subs quent oiabr thereoi, siilijei-,:s the 
de en<la t tocommim nt I'onwntempt an i also 
Oi a forfeiture of one thousand iio lars to the 
party aggrieved, besides rendering hun liab e 
lor all ua iiages sustained in oon-eqnence of 
su hdisi'be ience." Now, lask this tionoiable 
court, il, under al the cirrumslances, -ludge 
r azierdid not act with extieme kin ness to 
Cape, iiiydt, an i what ju ige could have done 
more. By refusing to ob'y the writ, Capt 
H. ydt wa snbject to imprisonment and the in- 
flictiiin of a penalty. But Judge brazier t >. k a 
humane vi w of it b c-iu.-e he sup.iosed the 
G' rma i had do e what he suposed was right, 
anil yet Judge Fiaz.er is laughe at foi- offering 
to loan money. Ju'lge H razier had read itfOoi 
the code. If the petitioner will waive, in 



writing, his right to be prespnt, th^n the court 
can try th« case in his iibs nee, Jhit Jud^c 
Krazi r, considering all the ci ■ uuistances, d d 
not require his presence, Peiha sit w.iS best 
when jealousy a d ex -itement existed in the 
public mind Perh ps th it is tlie rea-on Judge 
rrazier did no' enforce the atieiidance of ihe 
pe itioner I allude to this thi' g t show th it 
Judge Frazier, US far as po-s ble, was ag inst 
us and in favor cf the othe • side Hi- fee aigs 
were with th m, but his duty la the oih r way. 
Nnw, I shall not ti-oiible the h norable court 
with any niore rei'er. n-e 10 authoiiiie , I h;ive 
Slimmed up i i this irregul r way it lias In en 
in- pur, o-e to ry aid present the law, rather 
than'mai-e a spech in t e case and if I have 
any duiv at a 1 here, it is to my ebe t, and it is 
to p'estent ii~ cise, to pres' ni, the fiw if the 
case and th facts o the case 'o the judgment 
and consideraiio" of tins honorable eonrt. I I 
have failed to satisfy this honor.ible eon t as to 
my pnsit on, i J have failed lo sut sfy tlieiii th t 
this defendant ought to be a quitteil. th fault 
is in me, and not, in the cause oi iny client. The 
fuili is becau e I have not theabilty to present 
itioyou as t shoulii b done b -iiaiise I have 
nociot the force of character and the o -ce of 
log c and leg 1 le r' ing ^ulU.-.ient to present the 
case in its true bea ings Kvery man can un- 
derstand reason. I aw is fo mded i pou reason, 
and common se se and justice Audit i have 
ailed to convince i his honorabe cou- 1 ot the 
just ce of mv Ghent's eaue. that the 1 ,w is wi.li 
him— I say the fauli is ii m- self, a d not in his 
cause What -ver may be your decis on m tids 
c ise, if the honora le coui t plea e I h ve tried, 
in my feeble way, and in this lesultory manner, 
to pres nt tni^ case honestly and f I rh I have 
not insisted before this ourtupon a -ingle prin- 
c pie of law that I don't i^onscle tiou-l.> believe 
lo i e so Aud, as I t id you be ore," I would 
be f olish if I did so to pu' myself up m r.< -ord 
to lie recoguizi d ii f t re as no,, uniie standing 
the laws 01 my country. 

I hi^e preseute I these principles of law to 
your consideraiion honestly an I fairly, and j ist 
a- believe they ar^ It is for you to judge be- 
tween me aid he counsel on he other side; or 
ino,h rword-, 't i loryoua tiue (ieliverai ce 
to uiike, be'weeu the peop e of the State nd 
tne deien ant whom you have in charge and a 
true judgment render ac ordin.r to the law ii.d 
he evide i e in the case The Sate is ks much 
interested in ihe aemnttdasin the convietion 
of .ludge Fr.izier. Yo r law, loun'ied upon the 
divine liw, prefers tliatninet\ and nine uu Ity 
pers 'US go Iree and unpunished rather than 
th t one i iiocentniaab p iii bed > our laws 
pr -ideated ontliitMre 'tdivi e njunetio ; >our 
sovereignty and your St t ■, do notMUtborize ou 
lo c Miv ct a man unless the pro f :ind the evi- 
dence show bim to be gu 1 y. Having made 
the-e -ugges ioi.s, if the bono; nble c uii t base, 
so far :s I am cone rned aft r m associ tes 
have addiessi d you, wh ■ cm do it ranch be ter 
than I can, we n ust leave our cause, trusting 
ti at the laws of the it.nd may b jus ly admin- 
stered and wnat'ver >our jnd ment in this 
case may be, we mu»t how to u i > revcence. 

Air Maynard here siat d to the courr that, 
the dispatcii irom the ''les dent of th- U' ited 
Stite to th Gover or ot Tennessee in Jidy, 
IStJi, which W..S sub nitted hy Gen. Thom .s, 
v\ as miniftsily imperleot, and offe ed the fol- 
lowing as a coirec copy. 

The court th^n adjoumed. 

Washington, D. C, July lo, 1S6.5. 
To Gov W. G- Brownlow. 

I 1 oiie, as I have no doubt you will see, that 
the law- passed by ihe last" L,egisbituie are 
laithiully executed and tti it all 11 egal voters 
in the approaching e ection be kept fr m he 
polls, and thai, the elec ion of members of Con- 
g.essbicou uc ed fairly; an I whene' er i. be- 
comes necessary for the execution of the law. 



166 



and the protection of thp ballot box, yon will 
call ii|ion Gen. Tiomas for suffii', ent military 
tbrce to sustain the civ i authority <>f the Sta'e. 
.1 hare just read your address, which 1 most 
heartily endoroc. 

Andrew Johnson, 

Presidu t U. s. A. 
I, Andrew J. Fletcher, S' cret rv nf 'he State 
of Ttniie-see, do i-eriify ihat the forego in g is a 
copy of !in original telegraphic disna'ch tr>m 
the Presiiient of the U ited -tites to the Gov- 
ernor of Teunessee. as thi- sa'iie wa- corrected 
anil repea ed by the oper;itor at Washington on 
the da', .'^ucceoding it- date, a co'rect (!0|jv of 
which is now on tile in my ■dlii;e. In testimony 
whereof I have heieun osub cr bed mv ofli ial 
srgnitiire, and, b* orde • oi the Governor, 
atlixe I tie great seal or ihe f-tt e cf Tennessee, 
at the Department, in the city 01 N snvile,this 
27th of May, 1867. A. .T. Fletcher. 

Secretary of State. 



TUESDAY, MAY 28. 
All the members being present, and the 
minutes havinsr be n read and approved, ihe 
Hun. Horace Maynird proceeded to address the 
court on behalf the State. 

SPEECH OF HON. HORACE MATNARD. 

Mr. President and Members of the Court: 
Mny it please your honors, J approach the artcn 
nieiit 01 this case v\ iih a prof mnd impress on of 
it- importance, a"d a corresponding sense o 
my own in bility. 'I he questions involved ure 
fuii'iainen'al in'their chara tec, ^oing >o the 
foundations of the government. Upon their 
detjjrii/inatioii depen s very la- g ly the uture 
rela ions positiv ■, of two of the h -ee ureit co 
ordinate departments. Private character, per- 
sonal i't rests, do not enter into the inq try. 
A great priiici|ile is at stake, and tlie con-e- 
qiieuces of it- m intenancc or is overthrow 
will be enjoyed or depiore^l long alter the de- 
fiuilaiit the lefr ictory oljj'Ct- of ids lel ef, the 
humb eoth ial, the ubj ct of his punishieent. 
tlie counsel, the court, :•. 1 the actors partici- 
paiiig, sliall have pas-ed away anil been for 
gotte . A precedent is about to be established 
of ihe higii'st niome t. 

It is i controversy betwientheLe islature 
and thejudiid ry. The Legislature u-ists u on 
its rig i of exclu ive juri diction in all m otters 
coi nected with its ovv proceed ng». and in the 
discipline of its me ber- a? such F' r th^ de- 
fen lant it is contended that the ju'idaryhas 
the ijouer to review the pro eedi'gs of liie 
Legislature aid f eiroueoii- or I lega,l, to de- 
clave tliein void and disregard them, and to 
interrupt the proce<di' gs by an exiiibiiion of 
force .'Suchuasth action if th:; delendan in 
this case The House of Representatives, 
throng'i its Spealc r and executive otlicer. pur- 
suant to a formal resoUuion. was en.aged in 
the dis ipliue of is own lefractory neinbeis 
two of vvhoTj w< re in custody under he 
Speakers warrant, the frm.lity and lego- 
larity if which an- not que-tioned. The she. iff, 
with an a me I p >^^e, i.> senu by he defendant 
to rescue and set at liber. y ' e two p.isoners. 
and to iirresi the executive oflicer of the House 
of Uepre-entatives, by whom, under the 
Sfieaker's order, in conlormity *ith a p >si ive 
resolution of the Hoti-e they were heM in 
custody. This was done. It is written decree.', 
even attempted to be pal lati'd. It is just fled 
as a right and pr. per exercis.- of I'ldicial 
powei'. iiiid wiihin the jurisdiction of this de- 
feixlant's ullice as Judge ol the Criminal Court 
of ' iividson It is lor this highc > rt. this ulti- 
mate iribunal .f the constiiut on, to d 'idle 
whether th. sepa»-ate House- of the Legislature, 
on matters relatingexclusively to their own pro- 



ceedings, are or are not independent of juilictal 
control It.by your jucigaent, this pieceof iuter- 
noedillmg is re''uked, there will be ao end o all 
such judicial assumption If, on th.' other 
ban ', it is suffere i to p ss unreproved. a bad 
precedent is estai dished, wliich there will not; 
1 e wanting bad m n enough to f How. .\ dis- 
or-'anizing nece-sity wi 1 alway-- be ready to 
contemn ihe authority of ihe Hou-e, and to 
lesenta'l eOorts at di-oipline, by writs of ha- 
beas C'rpus, an t injunctions, and eivil actions 
lor datn ue-. and rimi ial prosecntio is ag inst 
their f( How -members and the obi'dient officers. 
In such an inqair\ , chjracti r and m>tive and 
-incerity of belief, are not el.-menis, an t cannot 
be rexarded. It is, and eaa be, oojitst def nseto 
the officia , whoh.i>invad-d \ouijust i.n I right- 
ful powers a'ld privde- es, to urue that he h.is a 
wile and children :it home, i • exemplary in a 1 
tlie private relatioi s < f life, has bone his 
honors meekly, an ' discharged his public du- 
ties to general acceptance, that h ■ smrerel}' 
believes in his a thoiity to set at nougtit your 
action any more tliinit could have availo i. 
.ludgf West i'i. Humphreys, as i deiense to tiio 
treasons and o'hr high crimes : nd trdsd^- 
me.1. ors where f he was imptjach-d, to ur.ge 
tlie piirity of his per on 1 cha'.icter, that he 
had been an aco piab e otUc r upon the bencSi 
and the sinceiitv o h s be let in the doctri e of 
se.-ession aim all its frightful eoro lari. s; or to 
take a higher exan • e, then ^aul o Tarsus 
could be excused lor his peise ution ot tiie 
I hristians at Dainas us by reason ol his uu- 
bi mished moral chiracter hisgieutleur ing, 

nd his full con^icti n t' at he ought to <.o 
many thinas coutriry to the sacred name. .A-S 
well inigh tae m riner hope to e cape ship- 
wieck I y pleading his wife and chi dren, his 
chaiacteras a ma ' audasiamin, and hi- -iu- 
ce e, tiiOMgli erroneiius, conviction C'ncerning 
tlie I' Hits o 'he comp ss. He was ^yar ed of 
the danu:erous reef; he ini 'ht liave e.x^iminei 
the charts, and con-ulted the plot-; he 
trusted to his own judgment, and his error is 
latai. 

I propose an examination of the law appli- 
cable to the facts of tnis case, an i wh dever of 
ability I can command, and with tiut care 
which a ca;e of such moim nt requir' s, and 
wth all attainable brevity eOUsideui, with per- 
spicuitv. 

The history of the extraordinary session of 
Ju y, 186(3. is identilied very closely wi h the 
hi-tory oi the present State governmen.. As 
« e have been told, more than once, m the lOurse 
of these proceidu ks, our State a a conse- 
qne ce of the reb Uion, had been left without 
civil gov. rnmeut, h d bei n stripped of all pro- 
tection oi the law. Th.- friends of the tjovem- 
-nent, the law and Union men, had put foith 
their I flforts 'o re-est b i-h c vil govern lu nt in 
Tenni sse.-. by what succe-sive steps, it is not 
ti cessary for me to recapitulate. Th y re- 
est iblish'ed the coustiiution, plactd an Execu- 
tive in Lhe chair, ch tlied the jiidgts '.^ itli iheir 
ermine, and sent rei res matives to tliese two 
halls ii legisla ion. It ts n it nee. ss-.ry, further- 
more, for tn to sy that, fioin the lie.iinning 

n I at e uh suci-essive step, they were met by 
virulent oiiposition and hostility; yea, ^Olne 
wh 1 ought to have heen their friends. Mere in 
the 1 at of theii' opponents. It is in pro >f that, 
at thi-. very t me, when the Leg si, dure was 
called tOi.eiher, tb le was a scheme on loot lo 
overturn the governm nt, and to set up another 
in its p a e They were dis-atisfled with it, 
discon ente I, angry, bitterly hostile, Th re 
wa- precedent aire ,dy in existence, wdiicii. \vc 
ito toid I hey were preparing to follow. Tiiaj 
P'eceibnt i» found, may it jilease the court, in 

he 17th vol. of Cart r's Decis.ons ol tiie rfe- 
pieme i,.ouit and in the 17lh v.d of Howell. 
It i- tlie ca-e of i uther v. Bouleu. That pie- 
eedeii:, is very i' structive, and shows how 
history repeats itself, oltentimes within very 



167 



limited cycles. [Mr. Maynaril here rearl Irom 
the authority reierrod to] Tliut, preiiflem. n. 
isth- h story 01 the lihoiie Island niDvemont. 
which is known in history as tlie Ui>r ■ reliellion. 
How far it was lilie that aiven here by th ^ 
witness and oni! ot' he cnunsel. you can jmlge 
as Wi'U;>sI, lor 5'ou lieard th • testimony. But 
there was an u lb tun. ire leature in that p'-e- 
cedent an uucoiniortabl^ eloint^nt Mr. Tlio*. 
\V. Dorr, wh > ha i lieen ele ted Governor, a 
man. I may be pormiited to Siy, of unblem- 
ished character, ■ n old citizen, ami 'U seen laut 
o.r ihe old iioge- Widiams lamily if I m ly u-e 
the icrms Ibiind himself a. fel n in the peni eu- 
tiary aii'l, unle s I am mis ai^en in rav recol 
lecti n, died there but a short time since, a 
cunsummation noi devoutly to be desir d. [Mr. 
Maynard heve red fiom the d"C s on pro 
Bounced by H >ger B Taney. | It wi 1 be re- 
memb red, witli reference toonr -ttitt) govern- 
ment, thai <J ngn ss had not yet admit;ed our 
Sen t irs and legislators, it "had ta en no siep 
whatever to lecoguize this as he established 
.coverumeut of the S a'e of (ennessee. It was 
imp irta it, therelore, I'or tliose pi ties wi'O 
were seeking o over hrow the 80vernm"nt, to 
prevent sich a recognition, to prevent the Con- 
gre soft e Uni tea States from ricognizing ii 
as the 1 stabl slie i government of the State, to 
present :t f om beiag c othed wiih tnathish 
sanct on whi h suca a recignition would give. 
Th re wei-e lawyers, legal minds, men f andiar 
with these ca~es itthelieidoi th:s m ^v ment. 
Tney on err to d the importance of a recogn 
tion or non-r. cognition ny Congress just as 
well then as they understood it after vvards and 
they were seh'nii ?. co c ivin,', uurp ising. 
intending, that th^re shoull not be such a 
recogiii im of Congress afuer the end of the 
war. Congr ss had seen pr per to submit a 
proposit on by which 'he government nt the 
sevcr.il 3tar.es that h id been overthrown by the 
rebellion lOuld be reco-;nized, and their Sena- 
tors and liepresentativss be aimittd into 
Congress. That proposition was embodied in 
an amenlmont, known as the fourteenth ariicle 
of the constaution of ihe Uni ert States. It was 
not a linal and lomplece ratiflcatiun of thut 
aiiiend Dent hj-enouithnf ti'.e States to give it 
validity as part of the con^tit iti in, and s > made 
binding upon all; but it was a pr po i ion sub- 
mit ed to the psople, through their pro >cr and 
recognized orgadzation, to say whether they 
accepted io or not, and i' they" lid accept it, as 
fir as they were cone rned, tliey would be ad- 
mitte I to the right of rel)re^en^atio•^, no matter 
what might or might mit b^ done by thi; ot ler 
Stjtes. this was perfectly well umler-to.id, 
and the ohject of the scheme was to [)reve t the 
acceptance of the propo>ition ottered by Con- 
gres — t > prevent 'iny actiiju that would sigviify 
a c<..mpllance w th it on the part of ihe people 
of len(ie>see, through th ir proper oigauiza- 
tion. Why th it aim? '1 he object was t < over- 
throw the State g ivernmeuE. to turn those out 
of p iwer wh > had established it, to ov. rsl iw it 
by an influx of reb Ifou ad tre sou at i he 
ballot bo.\:. (Jutside of Tennes>ee a higher 
game wa^ playei, looi-ingto t le control ot ihe 
entire country, a .scheme which one of U<e wi - 
nesscs has told you was blighted by the blasts 
and untimely frosis of the autumn oi' 1S:.6. 
'ihose gr at Northern elections put an end t > 
that>cheine. I am speaking o tiuugs us i hey 
existeit at the t me when you were called 1 1- 
gether here by .he Governor to am, in the name 
of the people (jf Tenne^see, uiion this i)ropi)si- 
tion — these conditfiu-, these term-, that had 
been onered by Congres>. in the name of t e 
people of the United S ates. Why, counsel 
spoke disparagingly and >1 ghtingly of an 
attempt 10 establish evidenee of a conspiracy 
for that purpose. Why. if a conspirac. was 
ever prove' I in aiiy court of justice, it has been 
proven in this; a coo-piracy emhracing not 
only Lota Houses of the Legislature, but out- 



siders, men surrounding it, men who were 
coaling into your lobbies, and high oflicers, •nd 
trusted men. We liav ; had put in here, from 
one holding a position in C'Uigi-ess. a letter, in 
which he urge, his correspondent to try and 
persuade a Iriead of his, a memberof the i"egis- 
iat ire, to coun erf itsioi-ness and to stay awav, 
saying in that letter, th it it will have the effect 
to keep u- out of our seats as members ot Con- 
gress, it will have the effect of keeping Ten- 
iiesse ■ unrepre?ented But it is a malt r of no 
moment, it is a th ng of no consequence, let it 
be done, and such i- 'he intimation, 'y 'ur 
aspiring and his asoir ng shall be met and 
s tistied; a way -hall e opened for yon if you 
a'complish this ea-y, thougu miportan', part ia 
ihis drama." i^ considracy! Mi mbers of ihe 
Leg si ture come here in ooedieiu^e to the sum- 
mons of t le Governor, going lo he Treasurer 
and drawing their pay bur, ap pi arinic scarcely 
ever in their seats: goinsr to the door ol t e 
House, as we are told, to <ee wheth r their 
coming in would raak'^ up a numner >upposed 
to lie a quorum, and if it wo Id, di^anpearmg 
and h ding awav irom tne olilcers sent in |jur- 
suiiofthem. Members oha.ige their boarding 
house in this ci y thr e or four tune- a day, in 
order to elud ■ the vifilan -e 'f the oilicers that 
the House had Sent out to bring them in and 
keep them ,t their posts of dut ; and flnallv, 
when that hope seeme I to h ive disappeared, 
ttkingtlae win^s of ih.:; ev ning and the morn- 
ing trains, au t hurrying off to their homes. 
VVhy, a more oaliiao earn .re complete, a more 
obvious case of c,6n-piracy, I'oird not be est b- 
lished; for, mark you conspLracv, like fraud, is 
a thing done in seer t, a thing not done in open 
day, as murder is sometime^ done and rob') ry, 
crimes that indica e a bl ody and more defiant 
temper of mind. And m ire than that, ih s con- 
spiracy was known to this deiendan . And 
here I will remark, t i.d, if we h id iieen aware 
of the evide ice which the defense intended to 
intriduc, and did introduce, we shouhl have 
thought it un eoessaiy to have cai ed in a 
single witne-s upon tnat point. What we were 
s 'eking to es abii>h, infe entialiy, was this, that 
this conspiracy was — must have oeen — nown 
to the de endut. This is proven po itiveiy, 
c early, unequivocally, beyond a shadow of 
dou >t, by his own witnes-j that h > iotroLlui^es 
here, wh^) tells you that >n the first Saturd.iy of 
the session he went out w th hi ii towards his 
home, and informed him of what wjis going on, 
an I that one week afterward- he >pent th'^ Sab- 
bath with him, and talke I the whole thing 
over. A conspiracy! Why, whe i the Hon e, 
or the oilicers of the House, in obedience to the 
manda e of the House, s icceeded iu bringing 
back to their posts, two of tnose re ractory 
members, yoi find hei e a number of gentle iien 
flying, inizzc^rd-wise, lo their place of condne- 
meuu to CO insel with them to commune with 
the n, to comfoi't ihem And who do you find 
there? A gentleman of the law. thit I wonder 
was not introduced also in this case as a wiin* ss 
lor th d fense, one w o had figured in counse s 
of treason inside of Richmouit during the re- 
iiellion. He is found there telling tiiem that 
th' y had done right. "Y >u have been ininObed 
upon long enough " He is found (dieering 
them and encoiir.gin them, as it would ScCm, 
in ihis piei^e of mschief an! wickednss. A 
conspiracy is proven, e^tablished, and knowu 
to the defendant, as such I may us we 1, at this 
part of u.y re uariis, state ;\hat I have to say 
upoo the propositioa to exclude irom the court 
all the ' vidence on that subject I wid remark 
th til we did that, we would exclude a large 
part of the d fondant's own festimony, ihe 
urmciple part of it. But I submit to" your 
honors whether this fact of a conspiracy, eu- 
16' ed into by members of ihe Legislature and 
ihose outsiile the Leg.s atiire. WjS not kU'iwn 
to this defendant. A judicial oiUcer might 
po sibiy act iujudicioudy, hasiily, unadvisedly, 



168 



withi^ut being aware of the extent anrl conse- 
quences of hi- ai'tons Bach wa- not tlie ca^e 
here H knew that the House of Representa- 
tives was struggling earni'Stlv. acivciy— strug- 
gling against t rrilile hostility and opposit o i, 
and ;iga nst a.combination of it^ own r lactO' y 
aufl ie\ oluti i:ia y membeis— t > piivent the 
accomplishment of theobje-.t th.it had called it 
toge;her. The court knows that, an i he i new 
when he was I'.alled to act, he wi> called on on 
behalf of the cunspiritturs He knew that he 
was arting in consummation of t'leir purp is . 
He hnewtnat, and wheth^-r e was one of the 
pai t'cipatiirs in it, is a mitter of no sort of 
importa ice, and I don't propose t> take t me, 
Certainly ill i his part of my remarks, t ) inquire. 
Well,th's conduct of the memi'ers, this con- 
spirai-y to de eat the Legislature, to overthrow 
the .^ ate g ivernimnt, ivnd^ r d it neces^^try for 
the H.iuse to inqui e into its rule- and privi 
leges, to know wnat was t>bedonein sue,h a 
case, to examine the foundation upon which it 
rc>ted; and they did so. of course they re- 
ferre i, in the fli>t in-tmce, to the con tiu iim, 
to see what iheir powers and privileges were. 
They fou d them in ihe 12th section of the 
second aitic e. "Each House may ilete mine 
the rule- of its proceedings, punish its members 
lor disorderly behaviur, anc' wuh the concur- 
rence of two "birds, xpel a me iiber, iiut not .1 
second time for the same offense; «nd shall 
have a'l otner powers uecessari 1 r a branch of 
the Legi-lature of a free State." Th t ^a e 
thina: is found in the old con t tutiou of iTJi 
It did not tiii'i it- way there by ace deut. nor 
was it put thi re without meaning an I purpose 
What did they mean by the Legislature 01 < 
free Stie, an 1 Mhere did they gu or .■ model? 
In l"9i, murk you jnst wilhin Washing on's 
administration, and nefore th : constituiion of 
the LFnited Siates had been able 10 h irden from 
the gristle into boue, and when it wiseven th< n 
a su ject of animadversion and reproa' h, where 
was ihe model"? The men v\h) f.rmed our 
oris?ina( cons itution, of which this is a trau 
sci'ipt, were some ot them law ers — they we le 
among the best lawj'ers of that dy. Tlieir 
great law books, their great law auth r th s 
were Eng i^h. We had no 1 av writers in 
America at that time. So far us I am aware of, 
there was not a single writer on the subject of 
law of any authority in America. Tne authori- 
ties «'■ re ver> limited, (Jo:.e and Blackstone 
were the. chi(d', and esprcialy Blackstone, 
whose proiluct on was then comp iratively 
recent, the lirsi ol his lour volumes having been 
published in 1765, just about one hundr d yi ars 
ago, scircelv more than twenty or thirty years 
beioie the loi'mation of our c n titutlou It 
was ihe g'eat 1 .w model of the lathers that 
establisiied our Government, and framed our 
institutions. Their model of the Legis ature 01 
a free State w .s the IJriiisii Parliament, and 
whatever counsel may say to the contrary, 
there i-- no body of men ol ancient or oi modern 
times, that iias done so much for the cjuse of 
jier^ >nal lihertv, a:id for the procectioa of the 
rights of mankind, as has the E'lglish Parlia- 
ment, especially the House < f Commons. Tu re 
the ight of the old Engli-h liberty, even in tht 
darkest periods of its hisiory, was never ex- 
tinguish -d, but was always ke,it burning, even 
during the arbitrary reigna of the Suarts, 
when liberty was held as cheap, perhaps, . s it 
has ever been hel , anywhere. II. re is what 
Blacksione says on this p., int. [Mr. 31 lynaid 
here re. id extra ts from Bla-kst.one, vol. 1, p 
159 to 163.] So said this great writer, so wrote 
our lathers when they mule this pirt 01 our 
constituii'in, declaring that ea h Hou-c should 
have all th powers nece.-sary lor the b-anch of 
a Leg slatuieof a free State; and hence, your 
Legi-lati;re has every iiossibie aitr.bute of 
power. MS is clearly shown by the extracts I 
iiave re id from this great wiitir-for Black- 
stone himself, as every lawyer Knows, was one 



of the most earnest, one of the most radcal 
trie ids o! freedom, and a maii most iutolei-aut 
of oppression. 

Well, that being so, we are to look sud sea 
what law t is that gove ns the legslatue. 
Let us see by what laws, by what m.ixims they 
are g ivern d. and where iliey are fain 1. We 
find that the Legislature is sro^erned by what 
IS i-nown as P a-liamenlary law, t at 's to say, 
the law o legis ative iio ies, the law that, 
so iiehow, the gentlemen thai, have add'esscd 
you on the ilete »e in this eas •, a though they 
have real fr.imoneof cue most acconiplished 
writers on that law, h ive strangely 1 m tted to 
discus- You have heard friai tie gentleman 
who preceded me, a very high eulgiumii on 
Mr. CushiU^'s W' rk. I ac ept the eul igy, and 
I read from 'he book. I Mr. Maynard here r. al 
Ir m the 9th p.ige of the advertisement of 
Cush'ng. I You iieard what was read yesterday 
from Story's Commentaries on the constdu lou, 
ill tiie spirit of the laci tha the English c m- 
mon law was a part of tie 1 tw of this country, 
and was standing there on our -tatute b oks. 
Every English li, w that was in existence at ihe 
time of the Am rican lievo iit ou, evcepc those 
that were incou istent wi h 'ur peculiar local 
affairs, was law iu this country; and as a mat- 
trr of fact, we ha e admimstereil Eng ish 
statute laiv and Euglisn conimo.i law, fr m t e 
beginni g of our Governine t, and we are 
doing it now, every day. [Mr. Maynard here 
rea I li-um I4th > o'. Easi's Ktpurts, p 136, in the 
c.ise of Burdett vs. Aiibot .] As I may na e to 
refer to tliis ca e again, I may as well state at 
I ngth what it was. Sir E. Burdett w as a 
member of th J Eng ish H mse ot Coinmo s; he 
thou ht tit to Wiite ana publ sh in Cobbett's 
Week y P liical Kegister, ov- r Ids own name, 
a i.ape which the House 01 Commons decided 
to be a libel oil their body. They i)assed a reso- 
lui on condemning him fir the libelous co 1- 
duct. and directed their Sjieaker to i.-sue a writ 
for I he ari est of the w i er, and to have hiia 
b ought up by the sergeant at- Arras, and to i.e 
kept in custody till the House should see fit to 
de.1.1 with mm. the Speaker Sir Charles Ab- 
bott, issued bis w>irrant, an ' the Sergeant at- 
.\rras Weill to the 'hou e of Sir Francis, and 
found it closed, broke into the house wdh the 
-oldiers, look the prisoner out, brought biiu 
aw:iy. a id kept him in c nlinement. He thea 
brought a suit aaainstthe Speaker of the House 
01 » o iimoiis. Sir Chas. Aobjtt, who was de- 
feud nt in this case. Acdon was brought for 
tres la-s The Speaker pleaded the facts sub- 
s ntially as I have stated them, and pleaded 
thai it was part ot the piivile.;es of the House 
of Commons to arrest and punish its own mem- 
bers, wueiiever they thought proper to do so, 
for such cause as might seem to th in good; and 
that the issuing of his writ, in obedenr.e to 
theii order, protected him from responsibility. 
Well, this wa-- m. t by a deinur.er, and the 
legality of the defense was argued. It was 
ius sted there the sine as it is insisted here by 
tois d.'Jend mt. It will be found that our bill of 
rights is a repet.iion of J/a^/ia Charta. [Mr. 
Ma.\nard her read from East/'s Keijorts, p. 147.] 
And yet, strange to say, we are asked by coun- 
sel what law there is on the subj ct regulating 
the General Asseoib y. Wo are told that the 
provisions ol the code are the same as those 
cmtunel in the constitution. It is saiti that 
the coustitut ou has only been placed there in 
aconveiieiit form lor ibe peop e to read. May 
It ple,i-e your honors th- meliininary is a part 
of the l;;w of the land, whethe applicable to 
iho bill of rights or applicable to any oth. r 
pa't of the constitution. Then yoa inquire 
,vhal is the preliminary law? Why, the law as 
it st.iiids in ling. and, tue laW of the House of 
Commons. 

Kow, let us see what the House of Commons 
may do wh n it timls its. If without a sufficient 
nuuiber of members to transact its business. I 



1G9 



read from Rowland, a recent work of much ex- 
cel'eiice a Manual of the E' glih constitaiioi). 
[Mr. Maynard here read fiom ilic work referred 
to, an I al-o from 254 Ciishins'.] You see the 
distinction between a legi-lative bo 'y after it 
is constituted, and b lore it is constituted. Its 
pr.wers beiore, unless they ari; derived from 
some other source, are naught, Decau-e befoje 
the House is constitutea, it is not a Hon-e, 
beiore members have been quahtie I by taking 
the outh, tiefore thev hive organized by elc. ting 
their ofliceis, they do not c lUS itu'e a Ho se; 
but Ahen they have qua ifled and elected their 
ollic rs, they con?tifuce a House. To illustrate, 
v.hen this iiody cime here on the Btii dav of this 
present month, it was as much organized and 
constit.ut« I then as it was when it iiouvened 
this morning, the Speaker weuc din ctly to hi.« 
seat and caliid the House to order, bee luse tins 
was tne same body tnat ha I been orjranize 1 the 
previous se-sion. The Clerk and his assistant, 
the Sergeant-at- Arms, and all tne other officers, 
stepp'd at once to their places, the members 
took their seats, ansvveied t) their names, and 
proceeded directly to business. If was an or- 
gaiized Hou^e. So it was w th the House of 
Kepr s ntatives when they came t .gethjr on 
the fouith day O! July, 186G, it was organized 
becuus • it had been Gig iuized at the first ses- 
sion of 1865. It had then elected its oflicers 
and sw r in its member?, ani from that time 
forth it was const tuted the House of Repre- 
sentatives until the time that it shjiU be ilis- 
solved liy the elecion of its su'ce^sors. It is 
an organized House of legi^luti(jn until the llrst 
Mon lay of '>ctiiber. 1867. But thi^ lact ee s 
to have been kept in the back'.;round, certainly 
not presented oi- consiiiered by the counsel who 
have addi'e?sed the court on the oilie other ?ide 
Please to r member that the House of Re, ue- 
sematives had been constituted i^y the eleciion 
of it- oflicers, and the quulitication of its mem- 
bers, at its first meetiiiif in 18fi5, and was as 
much con^tituied in July or N .vemlie -, 1866 as 
II. ever had been. Thw .--ta'e c nstitntion says 
"ea h House may determine the rules of ios 
own procfcediiitfs, piini:-h members fir disor- 
derly comluct," &c I Call the attention of the 
court 10 the rule> of the Uous; of Kepresent i- 
tives, alopteiand printed unde the nstruc- 
tion- <dthe House at its first session in 1865, and 
which Were ilec ared to be the rules of the 
House until tliey hould be altered. [Mr. May- 
nard here read from the rules ot the House for 
1885, showing that no member could absent 
himself without liave fiist obtained, and that 
]es- th in a quorum could sen^i for absent mem- 
bers.] I isapirtoftieparliamentarylaw.it 
is a. part of the law oi' the land, bmdinir uuon 
every bodv wno ((resents himself within its 
purview, that is to say, upon the mem ers oi 
the LegslaCiire. its otJicers, and those who 
bring themselves into iis piesence. When a 
cit Zen offers hrmself to the people as a candi- 
date for a Representative in the Legislature, 
when they elect him it is done with this under 
staumng. that he subjects himself to the par- 
liamentary law of the land so long as he is a 
mea.ber. Let, me give an illustrati n whi' h I 
hope will be taken in the s.iirit in which it is 
inten ed, and not as a matter of unkindness or 
reproach. Gentlemen who tound themselves 
niembeis of what claimed to be a Legislature 
in he year 1862, followed that Legislature as it 
left the Capitol and went, to Memphis, lur 
•widch they tave been called in question. 
Wh.it was their justification, it was that they 
Were bO'ind ny ttie law of th ■ body to whirh 
they belonged, and from which they lould 
not escape. This is n > new doctrine. It is 
argued here as though tlii^ were an unheard 
of propodtion, especially in the State ot Ten- 
nessee, l.et us suppose th'S bo y tomposed 
ot nineteen members, and that seventeen 
are supposed to constitute a quorum; 
let us suppose that some of the inter- 

12 



meddling si>irits on the outside were to 

come lure and abduct three of your mem- 
bers, are we to be told that the remaining 
si.xteen are powerless, that thej'xnust simply 
run away, that all 'hey can do, as was intima- 
ted yesterda\, is to go away and come back to- 
morrow, to see whe her their coll agues will 
be permitteel to return? Or supDos*- that tlnee 
of the members, dere ict to their duty, should 
walk out of tnis House and leave only si.xt. en 
members here; has the Avisdom of our Legisla- 
lure left things in that ( ondition? lair. May. 
nard here rea irom ihe Journal of "the Penate 
for 18(35 ] That is the same precisely that was 
the rule of the Hou-e. a ruh- that has been 
standing upon your Journals by regular suc- 
cessive adoptions tor thirty years, and I know 
no! how much longer. Are we to be told now. 
at this time of day, th;it this was a nullity? I 
donot thi k itnecessarj' to go back fartier. At 
the very first meenngof your body, under the 
presi'H'^ consiitution, this rule W'S adopted, 
ami this is the rule that governs you by trans- 
mission and adoption. Sha 1 we lie tod "in ^'i-gu- 
ment, that if threeof your mmi ers, I will not 
say contumeliously, contemptuously, but neg- 
ligently, carelessly, dis ppear from your halls, 
thitin th it case sixteen members would have 
no power to bring them buck? You aie author- 
zed to send you i officer and arret-t them. We 
are asked by what law; Avhv I apiieal to the 
Parliamentary law, the common law S" much 
eul igized and" so sirongly insisteil upon yester- 
d'\ ; but now, forsootii, it was for this iaw>er 
who learned ew lessois at Kichmond. and his 
iissOciai' s, and the Judge ot the Criminal Court 
of Davidson, to find out that the Legislatires 
of the country for thirty years had known 
nothing about t^e rules and laws of their own 
body. Such assumption it is tme should be 
rebuked, and reb'iked in sui h wise that it will 
not be put forth to those who come after us. Do 
up yotir V, ork so that your successors when you 
are gone will not have to do itover again. [Mr. 
Mayiia d here referred to tie eleventh section 
of I he (onsiitution whiili provides that two- 
thirds of each House shall con-titnte a quorum ] 
I have aneady shown to you that the Parlia- 
mentary law is the law of the land, but it is in- 
sisted here that uothing is lawiinless it is enact- 
ed by the Lef:islature. \Ve have had leftence 
to briugiiig suits a'-iain-t'he State. We are told 
that unfler that providoiiof the constitution it 
was necessary to pass a law before theSiatecnuld 
be sued Of course, before the Legislature di- 
rected it. it could not be done. There Was a law, 
but I heleve it was lepealecl, iiiit it does nci; 
api)iy to the present ease. There is aimn- 
d ntlaw for this case without any action of 
the Legisl ture; if it was not so, how would 
th' y 1 ver get a Leg slaturc togethei ? Where 
would be your ftarting point? Why it could 
not be assembl d, and if it could not be assem- 
bl'd, it could not pass a law. Lut we are in- 
volved in no such absurdity. The conmon law 
and the Parliamentary law govern your Legis- 
lature. The constitut on says that a smaller 
number than a quorum may adjourn f om 
day to day, may be anthotized to compel 
the attendance O! absent members. IMr. May- 
nard here re .d se tion 257 of Cushing ] As I 
have already shown you, under the constitu- 
tion you could then bring in yeiur absent mem- 
bers by your own rules. The rules of this 
House do "not govern i hem unless the next House 
adopt them. If the members w'ould n t assem- 
ble to the number of a (|UOitim, they W" uld 
have no power, except under that rule, to com- 
liei the attendance of absent members. But 
alter the l..egislature of Tennessee fas assem- 
bled and elected its Speaker, and auopt, d its 
rules, then they have the same powiras was 
exoicised by any pieceding 1 egislatuie I 
luqje I make myself understood; but we are 
told that ihelaw ciid not stand as it stood be- 
fore. [Mr. Maynard here Eeadsection Saiticle 



170 



2 of the constitution of the State of Tennessee, 
as follows: "The first session of the General As- 
sembly shall rommence on the first Monday in 
October, one thousand eight hundred and thir- 
ty-fiv-'-, and for ever thereafter, the General 
Assembly sh ill meet ou the flist Monday iu 
October "next ensuing the election." I con- 
fess I was interested in the argument ad- 
dressed to the oourt. I will not he s^ wanting 
in decorum as to say I was amuseol It was 
stiitei* thit the constitution was simp'y t>ut ii to 
the Code 'or the peoule to read, and I doi't sup- 
pose it was necessary to put the constituti n in 
another part of the book. Tiie whole Code is 
on>Actof the Legislature, and that contain^ 
the general laws of the State I may be per- 
mitiea to say that Mr. Moiirs was cert linly not 
a man ot superfluities— was noi. a man to do 
things without a purpose. Now, the object of 
putting thcs- constitutional pr'jvisions in the 
form 01 ena tinPiits, was this; we have in this 
country a school of political lawyers, whu 
Diaintiun thai the constitution, as such, is sini- 
plv dormant until it is vivifi d by h gisl five 
enactment, in other words, tnat rlieconstitut on 
cannot execute itself. Tue piovisiou, lor • x- 
ampe, in thr Federal c«nslitution as to fugitive 
slaves, has l:een held to lequiresome lej^isiation 
before it could b^ enforced. In order to jrive force 
to the constitution, they have declar. d that o 
be a part of thi^ ^tltuce laws of tiie State, but 
this IS a point in the case that it; is not neces- 
sary to dwell paiticularly upon, bi cause, as I 
have shown, alti;r the House is once organiz d 
— after it has elected its officers, qutlilied it-; 
mfmbers, and alopted its rules, these ml s 
t ecome ptirt of the Parliament .ry law of the 
body. But the house has more than ower to 
briiig in abst-nt members; it has the power t ) 
puni-h them. [Mr. Maynard here read from 
14th Kast s Kepoits, the opini n < f Lord Elien- 
borongh in tne case of Burdett vs. Abbott.] 
If this writer had had the powar i" forecasting, 
to look forward and see the condition of aflaii> 
in which vou met here in July. 18(>0, he could 
not have t'ictur>d it with m^ re force. You were 
daily held up to derision and scorn, your mem- 
bers were cursed as they walked the streets, 
denounced a d defli-d, and every attemp' to 
interfere with your authority wa^ applauded by 
those who proiessed lo be the elite and the chiv- 
alry ofttieland. Had you no power of st-lf- 
protection? If you had not protected your.-e ves, 
you cert inlv would have sunk into contempt 
and unbounded derision. [iMr. Maynard here 
re:td from 6th Wheaton, p. 204, in the c ise of 
Anderson vs l>unn. He also i ead from Jefl'e ■- 
son's Manual 1 The decision oi Congress has 
been followed from that day down to the pres 
ent, and 'he -uureme Court recognizes it. This 
decision in the case of Anderson vs. Uunn was 
delivered after the cases I have referred lo in 
Jefferson's Manual, were deided. |Mr. May- 
nard then reierrtd to the case of J uke E. Law- 
IC'^s. given in the report of the impeachment 
trial of Judge Pick.] Now I think I have 
shown that the House of Reurcsenrativts, 
either with or without a quorum, had the 
powtr after it hud been oiganized, to bring in 
ab^ent members. They had the power, no 
only to bring them in, but al-o to puni-h them. 
Tho-e two men, Williams and Mariin, were not 
merely ul sent members, but they were con- 
temptuously absent. 1 will read again the 
resolution that they pasesd, so that we may see 
exactly the view taken by the House: "lie- 
solved. That the Speaker be directed to issue 
warrants of arrest lor Messrs. Martin, Repre- 
sentative from Jack'On county; Butler, Repre- 
sentative irom Smith; Mariible, Kepresentative 
from Benton and Ilumphrey>; Porter, Kepre- 
sentativefrom Henry; Dunnaway, Kepresenta- 
tive from Bedford; Koster, Kel>re^entutive irom 
Hamilton; anrl Williams, Representative Irom 
Carter; refractory members of this House ; and 
that said Capl. Heydt, as Sergeant-at-Arms, be 



authorized to employ such assistance as may he 
necessary to carry into effect the order of this 
body : and that s;ud Capt. Heydt, as Sergeant- 
at-Arms, bring said members before this 
House, to answer for their conduct and con- 
tempt of this Mouse." Xliey were treated not 
merely ;is men that were absent, but as men 
that were guilty of disorderly conduct and con- 
tempt. [Mr. Maynard here reaa from p 502 of 
Eowlami.] 1 have endeavored to stiow, if the 
Honorable court please, that under our consti- 
tution onr Legi l.itiire is vested w th very 1 trge 
P'wers, that the.y ire governed by Parbainen- 
lary raw, ih t tliey have the power to ai re t and 
bring in absent mem ers, whether hey h^ve a 
qu rumor i.ot, and to impnsnn and punish them. 
Now I come to the action of tiiis def. nd- 
ant. as a JuuU'e, in issuing this writ of haSieas 
C'irpub The liist inquiry w U be, whether he 
ought to have issuea the writ it ;ill. He says, 
ai.d the couns' 1 say for him, that theie was no 
help fcri ; ih t he writ of habuas orpus was 
one to be demanded as a right; and then the 
couns I ci e certain sections of the Code We 
were referred on esterd;.y to the habeas • orpus 
act (if ' h ries the Second. If th counsel will 
alow me to coi rC' t him, it is the 31st of Charles 
the Second, and not the 29th, passed almi st two 
hundr d years ago, wh ch was .-a d to be anala- 
gous and almc st identical with our own laws 
relat ng to the habeas corpus [Mr. Maynard 
here read Hobliouse's cases, comnn nc ng at p. 
420, and the 5th volume of the Ki g ish (Jo i mon. 
Law Reports. ] This petition does i ot pretfnd 
to set out a i opy of the proce-s un ier \v hicli 
the^e men were arr> sted. I mean th Speaker's 
warrant. This delendanc knew tlm h- was 
treading on lorbidden ground He says, "now 
you are going o get me into t oubie " The 
writ was is'-ued and served upon th' ^ergeant- 
at-Arms. He wus required by it to have trie 
parties piesent at an hour when it a a antici- 
pated that the House could not convene to act 
upon it. Secti'in 8746 of the < O'ie provi es, iu 
reference to the writ oi habeas corpus, that "at 
the time ot making the retun, the person on 
wh.m the wr,t has been served sba 1 also pro- 
duce the body ol the person detain d, according 
to I he command ot the writ, or seow gool cause 
for not df.iug so." But s-uppose that >ome gen- 
tleman should be sentenced by the Supreme 
Court to u (iergo an execution at the hour of 
twelve o'clock on Fr day, ami that a riend of 
his f-hould jiO round to :."judge and petition for 
a writ of habeas corpus, a» wa-. done in this 
case, do you think that any judge wo Id >? rant 
if? Su pi ose ih it some person was sent to the 
penittntiarv ,iind a wr.t of habens corpu^ --houd 
be applied for to leleasehim oi hi^ labors, would 
the fact stated in the petition be sutlicifnt 
to induce the judge to grant the writ V It 
strikes me tha; the argunent ot c unsel ■ n the 
othtr side, on tliis point, is extrenuiy novel, 
but I will a^k yeur honors' a' tent ion :o the 
return made to the writ ot lii-.beas co' pus by 
Capl;. Heydt. I will not take up \our time by 
reading it now, hut I trust 3 ou \\ ill re. i' :t, and 
reaa it again. No hing ha 'been said about it, 
so far as 1 know, by counsel on the other side. 
CapL. Heydt stares that he arresteii thi- man, as 
Sergeant-at-Arms, under tiie speat%er's war- 
rant, issued in obedience t' aresolu ion 01 the 
Hou>e of Kepre>ei tatives, that iu . bedi- nee to 
another resolution he retained the members ia 
cu>to ly. Now to fchow the sjiirit h t runs 
like a dark fil ment through this entire tex- 
ture, I will invite the atienti> n 01 the co rt to 
t e letuin of C pt. Heydt Ihe artici s <d" im- 
pea hment set forth, "That Capt. in ilevot Ser- 
ge,int-at-Arm^, in obedience to the r. solutioa 
of tne House of RepresentatiV' s, did a|M ear in 
(itrson and by counsel, befor the sa d Frazier, 
judge as afore--aid, on the due return of said 
writ of h- beas corpus, an 1 with respect and 
courtesy, did make return thereto, according to 
the sad resoluiionof the said House, that said 



171 



Williams was detained by him, tinder anthoritj' 
ol the snif) Hou^e, as iis duly authorized oflioer, 
and 1 hat the s:iid House did resiiecll'cdlv. lint 
mo-t emphatically, deny the jU'isdictiou of the 
said Criminal Court in the premises, and the 
authority of saiil court to interlere in the dis- 
cipline and organization of the House of Kep- 
re^entat ves, iuforminsj said Frazier, jndg-e 
afores;i)d, that lie, thesuid Serge;int-at-Arms, 
Heydt, was directed to tender s-mh lesolution 
as a return tn the wntoi habeas corpus and that 
he, tiie Sitid Si-rgea t-at- Arms, H< y t, could rot 
prodnce the boily of saio Pleasant Williums, 
because by said 'resolution of sad Hon e, h 
wa> directed aiid bound tf continue lUKler ar- 
rest all refrai t ry niemb'-rs detained by him 
u til otherwise ordc ed liy said Hou>e " lint 
are we lo stand h' re and suppose that this gen- 
tleman did not know tUa' Capt l:le\dtwas an 
oftic< rol the I egi laturn, when he tells us iha 
al he knew aiioiit it was this resolution that 
was ofl"cit'd him as a return to the writ of 
habeas corpus? He sa\s thatthat is all he new 
01 his beintf Sergeant-at,- Aims. Butthe pi ak- 
er's Warrant, dati d at the speakei's room, is 
addressed t') Capt, W. Heyilt, special Ser^eant- 
at Aim> of the House oi kepresentative<. Yet 
we have the slight statement th it w s mide 
he e. I will not i I ice U|ioii the record such ex- 
pres I' ns as unkind or disin^eunous, iiut cer- 
tainly they an very reniai'kable. I have already 
staled he case of Anders 'U vs Punu, in whi h 
it was held that (he Speaker's warrant was sif 
flcieiit to make in arrest. [Counsel here refer 
red o ihe ca~e of Gossettvs Howuid, in the 59 h 
vol. if the English Kepoits.] But can y. u no 
trust the Representatives of the t eople < lected 
for i\vi> yeais, and must jour liberties be 
reltrrvd t') the juda:e of the (criminal Couit? 
If you cannot tru t ymir R- pies ntatives, whi 
can you tru t? [C unsel here lea lurtinr 
from cue a thorite nb'ive citeil, and then read 
al-o from the Congressional Globe ot the 
fli-t session of the 37t i i ongre>s, hcgin- 
ning .t page 210.] This has been the rule 
of Ihe Hou-e from fiat time until now. 
The .senaie, at a subsequent period, adopted a 
resolution .c the same effect. This rule is a 
mi.xeii question of fact and law— of lac , 
as to how manv m MTiiieri? have be n e ecti d, 
and of law, as to wh ther two-thirds of th it 
numierciiuld constitute a quorum. I am aware 
th it we have a ciass of gentlemen thit speik 
very si gi>tinglv of Consre^s. '1 hey intim te 
that every thing that has been done has iieen 
\inconsiitutional; bi'tfor the pse^ent at least 
this stands as a Liw. If we look in th ■ jour- 
nal and see how many members there were 
we find thai on tne 1 tn day of July, the dav on 
which the resoluiion was adopted, tha there 
we e fifty-two mi^mher>. Ii there were fifty 
members present, it wouM be two-thirds of sev- 
enty-flv ; but then, as 1 have alreud> stated. i>y 
theru e of the House, it was not neces.-<ary hat 
there should be a quorum— that a smailernum- 
btr was able, unoer the rule of the Houjc, to 
arri^stand bring in absent members. But ttie 
Ju'ige had no right to inqu're b hind the jour- 
na'>. Hi- commi>sion. a judge, gave hm o 
such right An idea ha> been put fort i h<re, 
that a c >ui t has a right to exercise a revising 
power. [Mr. Mayiiaid here read from t»ih 
Humphre\s, p. l.-<9.1 It doe-> Si em to me 
that i' th') defendant had road that declaration 
of the supreme Court., he would havt- seen at 
once that he had no such power, that he coul i 
do nothing one way or the other. [Mr Maynaid 
here r. leried to the case of the Miner*' and 
Maniif cturers' Bank] A case has leennal 
herefrom tue 2d Hill, the case ot the People 
against Purdy, and then a cas was read iiom 
2il California Reports; but the case does not 
touch at all on the points before thi court I 
appiehe d that no; to be the law [Counsel 
also read from 5th Gray, p. 468 ] But in regard 
to this question of breaking into a House. An 



officer is authorized to arrest a felon ; but there 
are many cases in whioh he cannot break 
(pen a door lo make an arrest. We are told 
by the counsel on the. other side, that because an 
odicer may open the house of a felon or the 
house 01 a man who harbored a felon, that 
therefore he must go and t reak down the doors 
of the Capitol, exixise the public property, and 
seize the officer while in hii othce. When the 
law was read to the juds;e we are toid that he 
s;u 1, "well, perhaps th t is the law, but then I 
W'Uid not go up unt 1 morning." A pat ty of 
rebel soldi- rs were there like h tines in the 
leash, just ready to spii g upon their game; all 
t hey wanted « a a word, or an in' imai ion. The 
judge siys. "1 would not do it until morning." 
1- that the way that a judge t di%s to hi- sheriff? 
vv hy did be not t 11 him, "you h ust wa t until 
mor. ing, this is not to be done to-nigh ?" But 
the counsel r^-ad the aw that w.u might bri afe 
open the dwelling house, and eonclnded, there- 
fore, tha you nu^ht break do«n the Capitol. 
Hut he says, •'! weuld not do it, wait ti I morn- 
ing." Shame! Shame! He is willing to wound, 
yet afraid to striKe. The officer co i es up 
iiere :indsays, T can te ,r down the Capitol." 
He lurks arounri he e, eud after a while breaks 
into th Capitol, arrests the Sergeant-at-anns, 
and takes him bef ire the judfiC. Jt is .-aid he 
meriTy fined him the costs, an I th t it wa- but 
halt the costs. But what had this man done 
that he s^ oidrl be made to pay the to t-? What 
was he guilty oi? Why did not \ou nquire 
how many childi-en he had begotten, whi ther 
he had a "ie and what ha been h s charac- 
ter? That action can be vindicated only 
upon the ground that the judge intended to 
carry out the law, an that by punishiig this 
m:n,he thougsit he v\ould punish the wh le 
Ploiise of Kepresentatives. This man had done 
nothing except as the orgm of the House of 
Kepresentatives. But if Hevdi was wor hy of 
pun -hii.e t, worthy of h .vi"g ten dollars costs 
urn osed upon him. then the Speaker and the 
members <>f the Legishitui-e deserv ed to hi fined 
ten times ten dol'iirs. I wish to call your atten- 
ti m to the assertion of th's judge, and to what 
is maintained here. I come iiow to an examina- 
tion of another branch of this case. ihi-'C- 
fendant IS before th's court upon an impeach- 
ment, and that devolves on us to inquire what 
impeichable offense are. [Counsel here read 
from 1st Story, on the constitution, commencing 
or. page SeT.] But we heard something said tha 
other aay bout polities i . conn, ction wiili ihis 
cas ■; lilt t is is a political offense, it sail' flense 
again-t the privileaes and p .wers of the high- 
est department of this government; that in the 
charge that i ■ mane, that the oei ndint as 
guilty of a gross violation f the privileges of the 
H use ol Representatives v\ hat remedy, 
pray tell me, ha i the House of Representatives 
in thi- case? 'I'he dec s'lin of a judge in a case 
of h. beas corpus is final, and caun t be < ailed 
in qnesiion, and here was a judge who was 
ready, as last as they brought their members in, 
to discharge them, 'O t.iiie them out of ih^-ir 
custodv. and to interfere with, and, if possible, 
defe t their action; and uerhap> it would have 
been defeated if, pending this mquir.v . the House 
had not gone forward and accomplished 'he 
business which bmught ibein together When 
they had no onger ny thing t<> gain by t eir 
action, then, and not tdi then, they stopped, it 
is for you to say whether the House be j ustifled 
or condi^nine I tor soiioing 

The hour of one having arrived, the Senate 
adjourned. 



WEDNESDAY, MAY' 29Tn, 18".7. 
The Senate met at the usual hour, all the 
members being present. The minutes hav- 
ing been read and approved, Senator McFar- 



172 



land offered a resolution tliat the court meet at 
9 o'clock and adjourn at IS, re-assembling at 2, 
and adjourniuff at half past4. The resolution 
was lojt on a vote of ayes 8, noes 11. 

Mr. Maynard then cone uded his argumentas 
follows: Mr. Pesi'lent and membe s of the 
court, invoking agiin the same ptient Htt.n- 
lion that I received at your hands on yestenlay, 
in the presentation of tbis giave and important 
case, I will bear your innulgence while I recur 
to a point in the argument at which, on reflec- 
tion, it is possi'ile I was wanting in cleainess 
to ma e myself thoroughly understood. In speak- 
ing of a dLCision of the Congress of the United 
Stat(.s as to tne nunaber oi niembers constuu- 
ting a quorum c f either Hou e, I cited a pre- 
cedent from the House of Represi-ntatives 
in July, 1-61, to the effect that 183 members, be- 
ing all the m mbers that were then known to 
have been elected, constituted tlie H.iuse. 
ISinety two members be ng a majority of that 
number, were a quorum of the House for busi- 
ne^s. In order to make that piece ient more 
clearly understood perhaps I s'bould say that 
the House consisted ol 237 members, or rather 
woubl have coi sisted of thnt number had ev ry 
district m the country tlected its representa- 
tives. HS it was authorized t- do, but in con- 
sequence of a secession of a portion of the 
States, all t:e me'fbers had not been elected; 
in fact, all the members thvt wee elected were 
183, and they constituted the House; and a ma- 
joity of th:.t number was a constitutional quo- 
rum, and so the Senate has since decided, and 
so both Houses are acting [Mr. Maynard here 
referred tos ction.?6l, ^ushing.] loughttosav, 
in explana'ion of that lule, what I should have 
said on yesterd.ty, that by the con-titution of 
the House oi Commons 4'i members are neces- 
sary to constitute a quorum loi doing business. 
Thti E' glish House of Commons, as you hth 
aware, i> a very numerou'^ body, consisti'.^g, if I 
mistake not, of 654 members. Forty meuib. rs 
are necessary, not merely lo do business, but to 
do any thing, and unless forty mtmbers are 
present to do business, nothing can be done: 
they lust simply go awav; and s-o in States 
whose Legislatur. s are flxed by the constitutiun 
on that model. For example, the House ot 
Repre-entatives of the State of Massa husetts, 
thf most numerou- legislative body of the United 
State-, consists, lb lieve, of six or seven hundred 
members; a d rtain number is necessary, not 
only to do business, but to do any thing, as in 
the Kngli-h House of Commons, hence th ir 
rule is not applicable to any other State; init 
wi^en a Le-ishiture meets it does not lol ow 
th:it hecause it cannot do any legislative busi- 
ness, that a le s numiier than a quorum cm do 
nothing. A smal'er number can do many things: 
It call ke p its jiiurnal. it can call its roll tn see 
how many are present, it can preserve orde 
and maintain dignity us well as if a quorum 
were present I ought to have made these re- 
marks on this part of the case on yesterday. 
■When the court adjourned, I was having the 
honor to call the attention of this high tribunal 
to what, onstitutes impeachable offenses. I had 
read fiom -tory on the consiitutii'n, I will now 
re d another extract from the same hi^h author- 
ity. [Mr. ?J ynard here rcuid f r m 1st Stoi y on 
the constitution, section 764.] Mr. Presideut, 
argument tor hours would not unfold or de- 
veioo better the high duties devolved upon you 
on this occasion. Adow me, lor the purpose o 
tran-.latiiig this proposition to recur to a me 
cases of impeachment in this •• ountry. I wrote 
a syllabus of them as given by Judge Story, as 
they had occurred in Kngla; d an.i under the 
common law [Mr Maynard here read at 
length, from the impeachment irial of Senator 
Blunt. He also referred to the impeachment 
trial ol .Judge Pickering, and t ■ the case of 
Judge Peck. The counsel al-o stated the cases 
of the trials of Judges Humphreys and H askell. | 



Our constitution defines what is and what is not 
an impeachable offense. It is any crime com- 
mitted by a judge in hi» nflicinl capacitv, which, 
in tne opinion of the House of Ke. resentattves, 
may require disqualiticati' n. If they no not 
thiu'i that such a ■ rime has been committed, 
then there is no powi r to i)ioceed against the 
ollicer, but it they believe that the olllcer has 
committed a crime which t< quires disq aii ica- 
ion, th' y are bound to speeiiy the crime and 
then you are lo decide the case. They have to 
decide as to the nature and character of the 
crime The House of Kepresientatives hus come 
here to you and prepared their impeachment, 
and it is your business to say whether these 
crimes have been committed. Your duty is to 
inquire whether tliis offense has been commit- 
ted by the delendant What is the charge'? It 
ci>i sists m an allegition against the deiendant 
fif havin - violated the privileges of the House 
ot Representatives: it charge^ this defeidant, 
as judite of the Criminal Court of Da\idson 
eounty, wiih hivingdepartetl fr m his jurisdic- 
tion. The articles of impeachment are two in 
number. After settini; lorth the facts, they 
conclude by charging that this was a gos- and 
uiiju-tifinble v olatijn of the privileges of the 
House of Representatives, that this was done 
a ter protest. lu the judges's unsxver, the fact 
is disclo^ed that when the Sergeant-at-arras 
was required to 1 'ring up tlie body of Jlartin, 
he came forward and put in an answer to the 
writ; in that, answer he exhibited a r< solution 
of the House, certified to be a true and <orrect 
copy of the original, and piotest was made to 
ihejudge in the case yet in contempt of that 
prote?t, kiiiwing that h" was interfering with 
the business of the H use, he proeeeded with 
the case. Some remark was made upon the 
word crime. Let us see what that word means 
and what it signifies. [Cmn Sid here read irom 
Bouvier's Law Diction ry, word crme.] I have 
shown unless I have in.po-e ' upon >riy own 
judg i.ent,, that this deiendant violated the law 
of the land known as the i):.rliamentary law. 

I will here read the first an t >econd sc tions 
of the second ariicle of the consti ution of the 
Stiite of Tennessee. They are as follows: "'The 
powers of the government shall be divided into 
thiee distinct deiiartments : the Legislative, 
Lxecucive. and Judicial. No person or p' rsons 
belonging to one of ihese departments shall ex- 
ercise an of the powers properly belonging to 
eith' r of the otners, except in the ca e- herein 
directRd or permitted." f^ow, the Legisl tore 
is an indep ndent department of the govern- 
me it, no other department of the government 
can iuvade your halls or invade your proceed- 
ings; you are answer, ible to th'ise who sent 
you here. Wh t Is the Legislature? The leg- 
islative b^dy of the nation is called the Con- 
gress, signilying, as we all know, the co:j ing 
t igether of the i eople of the United Sates, 
throu:ih their chosen representatives. In Ten- 
nessee, the Legislature is Cil'ed the General 
Assembly, because here the people assemble to- 
gether through their ct'osen repre-entatives. 
Their rep esentaiives are responsible to the 
people, and to no one else. ^ et this judge, in 
defiance ol the law, undertakes by his olUcer, 
to eiiitr your Capitol in th - silent watches of 
the night, and, in the person of your trusted 
and idiosen (jfficia', to seize, not liim merely, 
but to seize him whom he represents. That is 
the offense with which he is c a ged. The 
ciuirts ha^e decided agi n and again that this 
lould not be done. It has been decided by the 
Supreme Courtof ihe United States some sill/ 
old men who have out ived their day, who have 
learn, d noth ng thiit ianew, who have ibrgot- 
ten nothing that is old, have attempted to in- 
voke the Supreme Cou t of the United States by 
inj unci ion to stay the on-sweeping march 
iif popular events, and to stop the 
hand of the Executive from carrying 
into effect the laws of the land. V in,a 



173 



miberab'c attempt! As wpU might the sthool 
boy wfi'stle against the north wiml, or the tor- 
rents of h'-av-n be staved in their Hescent bv 
the li tie shade tho scho 1 girl raises between 
her eyes and the lurning -un How did. that 
court diHudeV You huve the Attorney General 
of th*' United States, not in sympathy with the 
legislative department, and a President very far 
fio ■ b ing in sympathy with the law he was 
callid to execute, ilow did the Supreme Court 
deci e it without <i single dissentient v ire? 
Thev decided that to interiere and to inteul^ed- 
dle in such a case, wou'd be illegal : inid they 
Se^t these old aentlemen, despairing of the 
public good, back home, to leave lln-^ affairs of 
the nation to be m :na.;ed by younger and more 
active men, by men or the present, by men who 
)iv in the ever-inovinir now, men who are bold 
enoueh to march forward in the gieat tri- 
umph; 1 pr'^cession. the sreat navMsyvaia. Now, 
what is the defense that is put in here? Whv, 
the only one that is wo th on*idering, is thai 
the action ot ,Ju ige frazier was right He says 
"true, I came into you'- hall an i took vour otJi- 
cer, as by my c mmission, as judge, I may prop- 
erly do, "and as I would do again, should a simi- 
lar occasion arise." Let me read a portion of 
the arifument that was addres-ed to tids court 
on a for i.er day bj' one, certainly not the least 
emin nt of the counsel that appear- here in the 
defence. I r ad a i ortion of the argument made 
by Mr. Ewing in response to what hid been said 
by my .issoci te ' ounsel 

"Biit. sir. I apprehend that the ju'Ueiary has 
some rights 1 apurehend that the judiciary is 
a co-ordinate branch of the governiU' nt, that 
the executive is a co-ordinate branch of the go v- 
ernmeut. These are co-ordinate brancries oi 
the government. 'Ihe executive branch has 
su'-h authority as is given it by the constitution 
an.l I ivvs. But the judicial branch also has its 
own powers. As a ju'lge, has U't the jiidae the 
power 10 pronounce a liiw unconstitui onal and 
a nullity. I auurehend t-at nolaw er, no inde- 
pei dent nian'in thi State of Tenn ssee, will 
contr'.ve't the doctrine 'hat all the>e d pirt- 
men s are co-ordinate. These lii^ht and p.ivi 
leges are not va-'ue, thev ;ire written down in 
books and by 'hose d< cisions in books, by par 
i ameniary usage, so far as it applie-, and by 
tre constitution we will be governed. I know 
ihiitthis court will be governed by it. Tlien a 
judge has some rights, h'' iias i-oine jjowers, he 
has some dutes. and tliose duties must b ■ exe- 
cuted at whatevir huzard of c >llision with any 
oth r co-ordinate bnnoh of the government. 
What a poor and pitiful spectacle Avould i hit 
man have afl'orrled in the sight "f the House 
and of the i ouutry. if he hadq ailed before the 
attemp on th" partot tiie Legislature to assert 
its po^er under the coi.stitutioo of the state. 
Because a man is brave enough to perform his 
<:lutyat:dl haz^trds. is it to be said that one o 
the "co-ordinate branch' s of the government is so 
hi-h and niighcy that he, must cower be ore it. 
and lick the dust at its feet? i ou see the time 
ha< not y^t come m leune-see when we are to 
rearard one branch as competent to override the 
other." 

I wish I had the power to give this paragraph 
the force with wnii h it was ejeited 1 can 
think o CO other temi, standin>{ like the cild 
Roman when accused before the p ople, and 
bar. ing his breast in utter disregard of Ids ene- 
mies, and a full asser ion of his right. Well, if 
that be so, if sucn be tiie law, if such be tfie 
constitution— it this defendant can march 
through your halls with hi- armed posse, and 
can take your ollicers from their plac , di<i'e 
garding the authority of 3^our Speaker, spit 
upo I hi- warr;.ntasa thing too contempiibie 
for im to notice, tlien let this colossus be tride 
the world, and we smaller men will try ami 
crtep a oug between his legs. li,on th other 
hand, he has arrogated a risht that is in viola- 
tion of the law, that is in aerogation of he 



legislative power and dignity, that is an insult 
to tiie great body of the |ieop"le whose represen- 
tativi s you aie then i-ay so and say so in such 
wise that none who come after will attempt the 
same thing again. Let this s ttle the iiuestiou 
at once, now and for all time to come; so that 
such asneotaule as was pnsentei in thi< c tv 
on the 19 h day of July 1S6B, >liall never again 
be witnessed in the judicial annals of the Si ate. 
I hat i-, the whole ca-e tiie aiticl's are pre- 
sented here. The ar.swer is exhibited, not 
brief by any means, and is deV'ted to the 
justificitionof theilefendant, an'i toan asserti in. 
of the rit;ht to do the very thing complained of. 
It is said, however, that this was not done cor- 
ruptly, maliciously and leloniously. Well, if 
it was lioiie ai all. it wa- done that way. These 
terms, as they are n-ed here, are terms of law. 
They are to be under-tood as law lerms, and 
not in a popular signitication. There is a com- 
mon out-oi-door chimnevcorner use of these 
words, but that is no. their u<age in the courts. 
[Counsel here read from the imp' ac'iment trial 
01 Judge Jackson: he al>o read from Houveer's 
Law Dictionary tlie defl irt ns of the words 
felony, feloniously and nialic«.\ I liese leims 
liad to be < xplaiue 1 to jurors bv juiiges presid- 
ing on trials. Sometimes lawj'ers are more 
I'egaidlul of their case than of i heir professional 
cha'-acter, and it, is necessary for these terras 
to be explained; but this question resolves 
it-elf int the gre,,it one whether a wrong has 
been willful y kno ing'y, and intentionally 
done T e first counsel who-pol<eon the part 
of the defense, dwelt at leng h on this suUiect. 
He read .in argument o ivir. Wirt, on the trial 
ot Judge Cnase Well, Mr. Wirt was an aiile 
man, who pre ent d his side of the question 
with a good deal of pliusibiiity and abilin, as 
I am willing to admit Hut "if you atti ncl to 
the r ading. you will notice that Mr. Wirt had 
several uncomlortabli obsta les in his path to 
s umbieove— some very common, lamiliar, and 
Well Know-n princi|)Ies of la v. The • ne was, 
that a man must i tend the natural conse- 
quences of hi- own ; ct, ih it is t > saj% that he 
must be held by the law to have designed to c'o 
precisely the tning he old do And when this 
defendant stfnt his sherill" with his posse up 
here to seize t"e ofU. e- of the House of Repre- 
sent t ves, wi bout any ni>tice, it must lie pre- 
sumed that he intended thii they should do 
t at thing, and rio it in utter disregard and de- 
fiance 01 ihe authority of th^- House. Well, 
there was another pri."ciple that trout le'i the 
c unsellor, aid gave hi n an opportunity to 
expend a great deal of language — that e'ery 
man in the community was bound to ki ow the 
law wiiether he knew itor not. N'ow et us see 
how the deteiidanr -taiids befo'e the court in 
regard to this matter. 1 1 e i espondent, in his 
aoswer, saj's: "Kespo dent doe^ not know, nor 
is he p re pari d to oimit. upon wh t articles of 
the con-titution of th State s d artic es of im- 
peachment are based &c." Well, 1 am wil ing 
I a imit that h" has stated the fa<ts. It is not 
important, pf-rhaps, to impeicu his veracity, 
b.ii it is showu thai tlie rules of the House 
were read befo e hi n iu the argument of the 
cause, and ihat he treated them >* ith so little 
res ect and with stich utter disdain, tliat they 
made no impre--ion i^hatever on his n ind. 
That shows nnother thing, that, although he 
knew positively that ea' h House, under the 
authority of th" ciinsii uti ^n, had t.he power to 
establish the rules of its own proceedings, he 
neier thought it worth his while to inquire 
whether tliey had established any ru'es. his 
was a case involving tl e privilcgr-s oi the House 
of Representatives and its uiendjers, and he did 
not stop to inquire what the rules of the H nise 
were. In ti is manner, the d' fendant sks to 
shield himself fiom ihe just cons quences of 
I is act. .^s he was a lav^yer, it is to be pre- 
sumed that he knew s methin- about the Li gis- 
lature and legislative proceedings. But he 



174 



does not deign even to inquire whether any 
rules had be^jn es iblished. T'lis was the first 
business he should hive inquired into. He 
should have said to this lawyer tVom Rich 
mond, and his volunteer associates, "Hns the 
Hou^e any rule on the subject? Perhaps ihey 
tnay have some rules, h't us see wh it th y are " 
Bui never ouce did this trouble his inquiring 
mind nd his auximis soul, and he did not look 
into the subject at ail. But this itte nut to 
induce him to inquire what woe the ru'es ot 
the House, was like the leeble shaft ot old 
Priam upon tlie shieM of flery Py-vh e-i whi> h 
fell far short of its aim, and was utterly power- 
less and without effe-t. Bui, the lespondeut 
further says, "reswondeit denies that tie knew 
that Capt. Heydt was Serge mt-at-.^vrms t > the 
H'<use "f B-presentatives." If ignorance were 
bliss, it would be folly to be wise, but it is the 
bu-iness of a judge lo be wisr". It is hi^ busi- 
ness t > know the law. Heou^iht o Have l;noivn 
what were the rules of tiie House This is a 
con'essi .n of stupi lity or olli ial igiiOiance 
that in itself is sullii ient to di-qualify him tj 
hold the otHce of judg\ Does a in:iu, who is to 
be trusted with the lives and liberties of Ids 
fellow-ci ize 'S, c^me here and make this con- 
)ession? He denies that he knew anything in 
relation to the iiiles of the House. It wa- his 
business to know He ou.cht to havi' inquired 
what were the ru'es of the Hou-e. We liave in 
ev dence h re that tne Code was r 'ad before 
ihi-i judge in the presence oi' tiii> law>er from 
Richmou I. Why dil not he look at ihf consti- 
tution? He is very learned about quorums, but 
he deuies tint he Nnew anything in rela'ion to 
the rules of the House. Is it possible ihat sucw 
a 111 in as this is lit to be ajudi.e'? The l^w 
writers that I hav • already read, say, that each 
House is autbonze'd to make ru e- for its own 
bodv. The constitution says that each Hou-e 
may detennine the rules oi iisown proceedings. 
But the defendant says it is noi. biw. If it is 
not law, it i> njt to be ohejed. But the i e- 
lendant nnd his Gotinsel wdl not say that there 
is nn law o' the land ex' ept that what i- put in 
the Code I have sliovn younlriMU thar the 
parliamentary law i< a par t of the law of t e 
land. It the judge lUd not l;now this, he ought 
to have known it. Now let iis >ee how h 
treated the LoyriSiature and their resolution. 
I read from ilie respomleut's decision, as given 
in his answer to the charges containe I in t e 
a tic es of impeachmci.t. He says: "By the 
last clause of the seventh s ctidn of second 
article of the con tit'dion, it is provide'1 thut 
iwo-tliirds nt each Hou-e -hall oiisii'ute a 
quorum to do business, but a smaller number 
m.ij' adjourn <rom day to d ly, anil may l>e 
authorized by law to compel the attendance oi 
absenr, meni' ers! Now, it is insisted by the 
couu-el for the peti ioner that there was no 
qifirum in the Ilou-e when he resolution was 
passed, and that there is no law p.tssud. eiiher 
lor the government of the House or otherwise, 
authorizing a b ss number than a quoiuin to 
enforce sueh a't. ndance, an I hence, ttie resolu 
tion is without aut ority of law. and void. On 
the other hand, it. is insisted that, by the com- 
mon law, by parliarn- nt iry usnge and the 
nece-sitj' of the cise, it miy be ilone, and th t 
the Legislature, or any number of its mtmhers 
elect ca • do any thin ir in t e ordinaiv liounds 
of legislation, which is riot especially p o- 
hibited by the constituti n. it seems very 
clear thit, in t'lis < ountry, the poner of the 
L,(!gis ature to make laws is derived al' ne irom 
the const ituti n, eithe ■ expressly graiiteit or 
reasonably to be inferred; that individual 
niemtrers can do no 1 gs a ive ac. merelv from 
thertl citon, no mor-' than a man eonld act 
Irom an a|)|iointiaent or election witlio t a 
coinrniss on; h' lice, b fore the can p ss laws, 
or ilo any other vdid act of legi>lat on, they 
must unit' and form (;iiemse'ves i to an ass iii- 
bly, and be. ore they can proceed to business. 



there must be present at least two-thirds of the 
whole number. Now, if the construction con- 
tende 1 f r was admissible, that any numl^er ot' 
members duly ussemhlet can do any business 
not expressly forUidd-n, this proviMon ot the 
constiiutou would be wholly nugat ry. The 
i-onstituti"n peimits a quorum to do misiness, 

tit It surely does not, by express terms, or 
reasonable construction, permit a less number 
to do moie than to adjourn from day to day, 
ami tT nforce ;iny law in existence ma e to 
lonififl the attendance of absent members. 
Tiieri, is there any 1 iw or rule of tiie House, 
adopted bv a quorum, authorizing a le-s num- 
ber of members th.n a quorum to enforce the 

ttendance of members? There has been none 
re erred to the c urt, nor has it be n able to 
lint any. Is su h law < r power inherent in 
such a number, or may it be infer ed from the 
necessity or nature of the case? Ihe court is 
unable to see it, if it is, or can be inferred " 
But tell me, tell me what remedy the House 
had, what relief from this griss, this out- 
rageous wrong? They could not appeal. It 
has been decided again and again by our courts 
here, that, in |.oiiit of fact, there can tie no 
appeal from a hubeas corpus ca e; the derision 
oi the judge is final, Were they to sit here in 
iheir p ace; without reoress lor this-unhenrd-of 
wrong? N o, no ; they had two remedies in thf ir 
hands ; one was thi — b\ the sixth a tic'e ot the 
sixth section O' the constitution they night 
have removed him summai- ly, aroitrariiy, fr m 
his office. Did ih. y d ii? Not at a I, but a 
process was served. Did he take any notice or 
pay any resi>e(,t to it or make any nspone? 
Did he recognize the uuthority of ihe Legisla- 
ture? He pays no re-pect to it at all, hut still 
they delay action. ' ut something is said abouS 
the whimsical opi>ositio , the turmoil and the 
angry i>uSsion, and all that, but the Legislat re 
gives liuu! for passion to subside, for cool and 
sober judgment to operate They nive this 
judge an o portunity to reconsider his action, 
and to place himself before the Lesrisi ature in 
such a ma ner that his conduct shad not be 
construed into a pre. t-dent. Does he do it? 
No, no. As a la^t resort, they b inghiscon- 
du'.t before your bar as that of a judge, wtio is 
disqualified to holil h s olHce. But another 
principle that i- put in by way of de cnse is, 
that a judge cannot be censured for nii er or of 
judgment, for a. mere mistake. So e authori- 
t es have been cited; I will refer to them [Mr. 
M^yi.ard h.re reierred to the ca^-e roportetl in 
.jih Johns n. ami also to 2 Hhickstone's Ke- 
ports; he also r ferret to whit Jiuige » base 
hail said in liis answer to the charges p eferred 
against him Counsel aiso cited t e imp ach- 
nient of Judge Haskell, comrm ucing at p. 441.] 
Now, one of the co nsel who appeared in the 
haiieas c ri us ca e, and who also appear- for 
the respondent, has been examineit as a wit- 
ness, in the course ot his i xarnination, not as 
a 'awyer-, but as a « itness unoer' oath, he states 
what his opinions were in regard to the case. 

1 hat wit less sta es tnat after the Legis ture 
had adj /urntd. the Gover-nor had no power to 
a mini ter rds piocl rmation. 

Jud-e Brien. i hat is not what. I said. I 
said it was urged in the court below th t the 
Gove nor had no right to cail the Legislature 
together. 

iMr. Muynard continued. Well, I cheerfu'ly 
make the coir ction, and 1 confess hat >uch an 
opinion, co iiig fiom a lawyer in this tate, 
hurt me But I say, suppose the judge h id 
ha I this information, and had tin eriaken to 
act upon it it would have • een a verv I onest 
opi ion, but I say, suppose the jiidgv hnd de- 
I ided adversely as to the power o: the Governor 
in th"s matter, what wouol have been the 
leiuedy? Whv, simply to remove him from 
olliee, and to disqualify him. l-iut iliis is not a 
iiiiiiinal proceeding louciiing the deiendant in 
his otliCial capacity. The constitution says that 



175 



a, judge shall be liable to indictment, trial and 
piinislimer t. acccrding to law. But the de- 
fense urged that the judge was a loyal man, 
and also, that Williams was a soldier for four 
years. Well, I don't know th it there was any 
evidence on that subject. Williams was in the 
service four years lacking, perhaps. thr<'e years 
and nine months. I don't know how that was, 
but let it all pass. VVe know, from the history 
ol mankind, that it does not 'ollow that men 
will always be true to the cause for which they 
have foug'ht Why, one of the earliest insiancts 
of thi^— as our iriemt ha> betrayed me into 
making nferenco to our school-boy classi<s— is 
to be found in that most wontleriul composition 
oC antiquity, tlie poem of the greiit Gr.cian. 
The whole' history of that poem, tlie whole 
argument and whole substance of it, is, that one 
of the Grecian chieftains, at the close of a long 
and wearisome campaign of len years, found a 
pretty 'oieign maid whom he de.ermined to 
app oi'Viate as his wife— for they all had wives 
at homi'. This maiden was smiichcd from honie 
bv another and more powerful chic fain than 
himself; this chieltain, who ha'l made so many 
enemii s bite the dust, turned his liack ui'on his 
oouu'ry's < a' se, and went silently to his tent, 
and no more liltid his arm in defense of his 
native Greece, i hat is the buid^n of that im- 
mortal poem. -tipped ol its imagery and its 
briliian sur oundiugs. 

"Ach'Ues' wrah to Greece the dire''ul spiing 
Of woes unnumbered, heavenly go dess sing." 

I cite this example to show that one of the 
Grecian herofs turned upon his country, and 
was •ine of its birterest enemies, i is name 
stands lO-diiy, with that of Judas tscariot, as 
the synonyrae of 'reason. And so we may 
eome d'lwii and multiply instances in on- own 
time until we come to the case o Pleasant Wil- 
liam>, of the c uniy of < ar er. But it is not 
denied by the counsel that this s uiic Hleasant 
Will am— this -ameboid so dier-boy— this same 
valiant chieftuiu - w.is guilty cf a great and in- 
defeusiiile wrong in aliandoning the post to 
■Which he had been assigned i>y tlie pecpleof h s 
own county, for duty. But i"his man is tomd 
runnintr back ana skulking, and seeking to 
defeat the ;tction of the Ltgis atnre. But we 
are told that this four yea-.-' flght ji'stitied Idm 
in tak ng tne action that he did. But ■ by this 
IS broiigitin here after these sta ementshave 
been made, under oatn, is m^re than I can c m- 
pr< hend, unless it bi^ to overburden the case, 
and prevtnt the re il question from b ing si en. 

Well, now, 1 am not hi rt- to impugn the 
motives of this defend. n^. The very fact that 
he holds a commission as judge implies that ho 
■was a man of good character— impli s that he 
"was a 03 al man, a Union man, that he was a 
good lawyer. But charactt r has nothii g to do 
■with this case one way or ihe other. But r 
have referred to the ca^-c wh re the defeniiant 
■was charged with official misbehavior, in re- 
lusing 10 sign bills, in refusing wr t- of habeas 
corpus, when he onghr to have granted 1 hem, 
and grantingthem when liesh ulii tiave lef'S d 
them Bur we have admitted e ery thing thai 
■was desied here by the defendant, e.xcept th^ 
iudecor.m and the indecency of allowii g hs 
brother to sir as a memiier of the court upon 
this tr al; and if there was any doubt upon tlie 
part of any m mber o this onit, that doubt 
(ii^ ppeared vipon ihe moment ihe te.>timony 
■tvas t ken. Wuy, we dont even o'jict to the 
Senator who wa^ s own by the record to have 
been the ajeutof Williams. We marie no ob- 
jection t . turn; we a lowe him to decide upon 
ti.e evidence aid the law. But then - haracter 
is n thing I i.ave stated that th s is what i- 
called ii\ the law writers a p >lit cal offense. 
Why, even Charles the Second, and Louis the 
Sixteenth, are said ti fiave been blameless in 
their pr vate re ations, ant, like this defendant, 
to have had wives and children at home. They 



■wore not charged with personal, individual 
ollenses, but they Avere charged with under- 
mining the great Temple of Freedom, and it 
was for that that they were called in question. 
I may instmce thi; mennorrble case of Lord 
Str.ifford, who was convicted on im))eachnient, 
and sentenced to death. I will nor allude 10 the 
case of Bacon, who allow* d himself to be im- 
properly approached and to give personal pecn- 
niary favors. But it was held ihat such pro- 
ceedings ought not to be tolerated. At a later 
da\, his was done by Emmet and his contem- 
poraries in Ireland. May it please the court, I 
have consumed much time in the presentation 
of this case. It is a great case, it is an imj or- 
tant case, it is a case that is tvavclling along the 
great hghway of con- titntional l>w It is as if 
one should dig down to he bow Is of the earth 
and plarta magaz ue there wbich in years to 
come, perhaps twenty, perhaps a hundred 
years, some wicked hmd should api ly a torch 
to it that would blow this magniflcent structure 
to atoms; but, may it p ease the court rather 
than trust myself to the momentary excitement 
of tile occ.isioii, I have put into considered 
words the general summary of the ground I 
have gone over. 

Thus we find the House of Representatives 
striigglin.' against a comijinaiion of its own 
refracioiy members, aided by counsel from 
aboad, including not only a ho tile element in 
this commu ity. but pernors in high places 
elsewhere, assailed by a virulent ami u relent- 
ing press; Its members cursed and threatened 
as they walktd the stretts; and those whose 
business it was to conserve the public peace 
appr heuding a public attack upon them an 
appreliensiou of which tlr y then selves par- 
toik; ami i'i the very heart of the coi test, 
ju>t as they were about to brirg it to a suc- 
cessful i-sue, the defendant is invoi:ed to res- 
cue a iJortion of the malcentei ts f om the 
author ty and just control which ihey had 
d^fiel He is approiched by lawvers, one of 
them his kinsman and bosom trietid, known by 
him 10 be in syuipailiy of 'pinion wiih ti ose 
who haa conspired to "defeat tlie action of the 
J^egisiature, and solicited to u-e his juiiicial 
authority in opposition to the House, and in 
aid of ihe guilty m mbirs He instinctively 
lecoi s .nd pro i sts against such an act. But 
importunity prevjiils, lie takes the first m. st 
e.xpensivu s eii, and Ir "m that gi es on protest- 
ing that he in ended to do his duty, as if 
conscious all the while ot a strong inducement 
moving him to the contrary the result was, 
that he interposi'o violently "in the pr. ceeilings 
01 the House by r leasina- the refrai tory mi ni- 
bers, and arrest ng and fining their executive 
oiUcer, whom he punisherl lor no other fault 
than obedience to the orders of the body by 
which he vva.- apiiointed. 

Ihis condu t is now defended before you as 
legal a.ul right, »nd you are required by > our 
decision toaeteimii e whether, in your opinion, 
it is s > or nut. The question is so prr'~e ted 
ttiat you cannot escape it. It is 1 ossible thMt 
the defendant may iiave rtgretied to find 'he 
House's proceeliuL's invalid but he did not 
hesitate to inquii-e into and revise them And 
herein was his gre.it, his fatal er or. In vio- 
1 tion of the constitution, he encroached upon 
the iimts of another branch of th ■ govern- 
ment, intent onally, know ii gly, claiming and 
still claiming a rig" t to do so. 

It beio I es necess ry for you, therefore, to 
vindic te the law, and in no n^; so, y(,ii cannot 
re ard eithn- ignorance or mist ike in its vio- 
lation, except in the degree 01 punishment you 
may t in- pr p r to imijose His ianmia'e 
beiore ou is, "I have don- tie act compl ined 
01. I difl right, and would tlo ihe same thing 
igam.' It IS lor you to decide ui7r>n this 
assumption, and so to decide thai it will never 
ag in be put forward. 

That he did it willfully, he admits, that he did 



176 



it intentionally, is notilenied; indeed, the law, 
by an old and well-known principle, assumes 
every man ti intent! the natural co sequences 
01 his own act, in other words, that he iiitend< d 
t) do the very thiiig he did do; that he did it 
knowingly, is aliunie.tly proven; th:!t he did 
it wroa^Vully. I think I have conclusively 
shown. A w'roDir act, willfully, inientionall.v 
and linowin^iy done, and now att' mpied t > be 
j 11 stifle I and per>evered in, leaves > ou no 
altern;itive ex.ept to declare the wrong, and 
condemn the wrons-doer; or to yield to t e 
wrong, let it triumph over the light, and 
fasten it irrevocably upon the government 
institutions otthe Stite. 

If the deiendaut be a man of exalted chanc- 
ter in his priv.,te, professional and olli -ial life, 
so mu h more pernicious the example and dan 
gerous the precedent. If he be'i ved, and still 
believes, that his a;,t;on was right, so much the 
more lilcely will he be to epeat it, in the lan- 
guage of one of his counsel, " at whatevei' h z- 
ard of collision with any other co ordin ite 
branch of the governmen%" especially if by 
your acti )n you fail to disapprove and coidemn 
the, encro chui'nt. 

The prevalent evil of the time is ih" oncn. un- 
disgui-.ed eonten.Dt for legisl.ti e authority by 
th '. enemies of the government. 1' has pre- 
vailed ev> r since the beginning of the re ellion. 
'I he members h:ive been reviled personally; 
they have leen defamed as a holy Every act 
looKing to the preservation of the country 
against rebel hostility, or to the resiorati m of 
civil governtnnt since the re ellion ha'l ovet- 
thrown ir, has been di nou'ico'l as a violation of 
the constitu ion, a usurpation, tyranny, des- 
potism, and I know not what besidti. Such epi- 
thets have b^ien c immon as the " f.incoln Con- 
gress," the "rump Congress," the "Yinkie 
Congress, "a bo >> calli g itself Congress han/- 
ingupon the ve ge of th s government." the 
•'rump Legi lature," "Brownlou's l.cgi>l,i- 
tnre," the '-free nigaer Legislauire,' and so 
on to the end 

At no other time, and in no o her state of 
public feeling, would such a c se as this have 
ar.sen; at no other tira ■ would such a doctrine 
have been a-ser'ed. The Hou.-e of Kep e-enta- 
tive^ was exercising only the ordinaiy every- 
day piivilegeof securing the at endanceoi its 
own niemiiers for the dspitch of the pui>lic 
bus ness, and it wili s a d to iheir h nor in a 1 
time, ihattneydiil not allow ttiemsel v. s to be 
moved by the he.t and excitemc t of the day 
to tiie exer ion of their undoubt^ d auth rity. 
and order the arie-t of he laterfeiing judge 
an I all concerned with him ; that they nid not 
even avail themselves of th summary ami even 
arbitr iry power of removal given by artic e 
six, -ect'onsix, of the <onstitu'ion, but after 
due delibe;ation and full time to let all pas ion 
subside, brought their case f^r exuminatioo 
and decision b fore tliis higli tribunal. 

And it is for you, wi'hout feai' or favor, to ^o 
adjudge tlieir cause, that their indcpen urceo' 
every power but that of ihe people, >-hould 
never iigain he drawn in quesiion The law 
itse f is OQ trial, you are your- el es on trial 
and the judge is condemned when the guilty is 
ab«o ved 

Ap leai aie made 'O your clemencJ^ Even 
forbearance is in oKed 'You are asked to close 
your > yes to every thinir but the conveni nee of 
thi- hiady oilic'al. clem-ncy and forln-arance 
and person il considerations, are not permitted 
you. I'utv, plain, dirt ct d unyiel'ling duiy 
is y ur-; duty lo the c nstitutio i, duty 'o ihe 
law, to our free governmen', ilit to ihe com 
ing posiciiiy, whom for evil or for good, your 
de ision will powerfully aflect. 

W lOii was tliis elemeney, ihis forhi aranc •, 
th's personal onsiilera'io'i exh b ted towards 
tile "n ilTeiiliiig - ilicer wh • has be n drawn an 
iuvolu tiry party to ihese p oceedings V He 
coaicisedly wus without lault. He acted un- 



der the instructions of the House of Represen- 
tatives and the immeiliate direction of the 
Speaker; yet with profound deference to the 
judicial dignity. When, afti r argument, and 
IS It is maintained, t'rave deliberation, the 
ju'ge decided his auth rity insuthcipnt, with- 
out notice to him, w ithout "further order, with- 
out giving him opportunity to communicate 
with his official superiors, in the night watches, 
a sherifl". with a hand of armed men is sent to 
breali into his office at the Capitol, <irag him 
from his bed a prisoner, -inri wiile declaring 
the e was no fault in him, the jud e mulcts 
liiinin costs wideh he is required to pay before 
he can be dischart; ed. Upon what pi cij^lecaa 
such conduct be excused or pal atedV We are 
tol I Ihis was necessary to vindicate tlie law, 
broken indeed, but with no intention to break 
it, witli a lu 1 and tionest and cons ientious be- 
lief of doing rigiit. Such is ihe excuse of this 
defendant; "out of thine own mouth do I con- 
demn thee. If the vindication oi the hiw I'e- 
quireil this ru(!e, and summay, ai d Inimi da- 
ting trea'^ment of William He> dt. the Sergeant- 
at-Arms, how much sorer pun' hment does it 
•equireof you who have violated th law i ten- 
fold measure beyond what you ever pretended 
a.gunsthim; you wi o in imprisoning him in- 
sulted the ijiople of T'nnes^e ■ in the persons of 
their assemlel representatives, who, in im- 
posing penalties on liini, punished viciously the 
bodv of legislators or which he was t e obe- 
dient instrument; who, in ilepriving himofhia 
Mieity, asserted the right and the power to 
arrest him and punish e ery man composing an 
indep ndent and co-o diuate b anch of the 
government, simply for discharging their fuue- 
I ions in such wis as you dis ppr.jxed; who, ia 
authorizing the breaking open f theCamtil, 
expose'l the public archieves and the valuable 
tilings Of tlie State tr astued there, lo a nuiiti- 
tiide o armed pr vv'er-, nonet o good, :is the 
sequel proveil, to filch 'he pic ets of your vic- 
tim and steal his money. But itt the lav be 
vindi-aied, let justice he done, though ibe hea- 
vens fall. 

Considerations of sentiment and ennot'on, 
theief r.i, have noplace in this inve-tigation. 
The case approach s, as netil-' as Human af- 
fairs can a proi h absti'aet, impersonal jus- 
tice. Xei I h^r tne personal, n ir the pr fes-; onal, 
nor the gmeral official mirits ■ f the de end nt 
are affeite i by i*:, or can be affect -d i>v the re- 
sult He is charg d by the House of Repre- 
sentatives With ail offense, wh ch, in their opin- 
ion disqualifies him for the office he i olds. 
Beyond that the say nothing and do not sl£ 
yon to tiu't. It is tor you ro look at the proofs 
befo e yon, and to s ly. upon your respons biiity 
to this gi neration a d its posterity, with be- 
coming reveren e for th-- auriist triliu lal 
a' ove. whether the accused hath or htth not 
done the things that be laid to his ch irge. 

AKGUMENT OF JUDGE BRIEN. 

The following s the argum nt of Judge J. S 
Brieu. on the part ot the di fenfe : 

Mr. I'res'dent and members of the Court : I 
dontapproacii the argumentof this casewithout 
feeli giery grea' embarrassment nor on ac- 
coun' of misapprehension on my p.irtof the 
true is-iie before this tionorabie court, but be- 
cau-e I may, by some nii-a tvertance, say some- 
th ng tliat may mi itaie against he de ense 
liere. and leeause my views of th s cast- are to 
u teriy at. vari inee vvith h'' present tion on the 
part of theS' te governmi lit. th 1 1 have occa- 
sion 1 1 leel emhaira sraent. The gentlemen oa 
the other side hive argued t i.s cause wih a 
zeal ami ability, that, I am free to say, would 
h ve been worthy of a be ttt r cause Neveithe- 
I ss, fiey have argued it with ability J would 
despis- mysi If if 1 were to permit my feelings 
u) mtliieiiee my juilgment in an argument ot so 
much importance to the State of Tennessee and 



177 



to the defendast, as this is. T would not per- 
mit any extraneous inllut-nce to sway me hfve 
in the presentation of this caise. Biit I niusr 
say, th t, in no crimiial trial with which 1 have 
ever heretiifov" had a y connecti >ii, have 1 
ever seen a defendant pni'siied with sucli vin- 
dciiv'nci-s in my life as ha< been pursued 
against the defendant here. Theeounsel w o 
last spoke has -aid that he hail written out the 
closing part of his argume>'t for fear th it lie 
wouM ina vettantly say something that he did 
not ine ii I think it w.;s fitting that he sliould 
have written 'h s out. lint, sir. this is a cuse 
against one of the ju'llcial officers of tiie >rov- 
ei-nme t. Ihe State of Tennessee has tauen 
extraordinary pains, of which I do not com- 
pliiin. that this matter should lie fully ai.d free- 
ly investigatod. And not only havi- they up- 
pointed manaiters, but the State, in its anxiety 
to do right, has employed tour learned and dis 
tiugui he i counsel Ido not compl in at this, 
I am r itlnr gratihed at the fact. Perhao- if the 
Uui ed States of America had been hunte' ove , 
bi'tter sCl ct ons could not have b en made. I 
bail iieeu t.iught lo believe that Webs'er, and 
Wir , a dErsiine. and such other men, were 
the lei'al lights of the time in which thi-y lived, 
and 1 have been unalile to see in my blindness 
tha tuey h ive leit many superiois on the lare 
ot the earth behind them. But now, Mr. Pr- s- 
ident, w at is the c se which \Vi- ar ■ to try? 
Judge Friz.er is cb irged before this court 
with having, in violation of the law, wrong- 
fu) y, wil fill y, and feloniously, attempted to 
break up he fjpaislature. The niainqiuston 
is, <lid Judge Frazier do this? The next ques- 
tion is. what a e the fundamental ruies pre- 
scri ed by the law of the land lor the gov- 
ernm nt of the Legislature ? The Leg- 
islii'ure of Tennessee lias the riL'hfc to 
puni>h eV' rv one for contempt. We do 
rot conirovrt that — we admit it to the 
fullest extent. Now, I ark, what is m ant 
by th- three c."! ordinate hranches of ihe gov 
er' inent of the State of Tennessee? It is 
clainieil here ih t no power on the fact' of the 
earth can inteifere with the legislative depart 
ment. I ask in what respect the Legislature of 
the -state is independent of all othe bra' ch^ s 
of the g ivernment. It is in the passaigof laws; 
ii thatit s supreme. Neither t e judieiary nor 
the ex cutive ean control thai power in the ex- 
ercise o' its peculiar function-. When they p iss 
th iracts they are put nto the hands of another 
co-ordinate branch <.f the go ernment, which i- 
as>upieii e :;s 'he I egis alure s. that is. ii to the 
ban ^ of the jutliciaiy. The obje t of this is to 
see that the laws are in conlormity with the 
constitution But til me where a LegisLituie 
was authorized to consider the laws as in con- 
formity w th the constitution? L is left t) the 
court- oi the country lo determi,ne th t ques 
tion. But when gentlemen claim that the Leg 
islatnre i- independent, they claim only that tiie 
Le^i-lature is an emanation frun the people. 
But the p opie have also prescribed w at the 
courts hall do und what the exe^itivc shall do. 
I say that if the c >uris shoul ' attempt to inter- 
fere witti the Legislature in thepa-smgof laws, 
it would be jn usurp tion or p .wer, and if the 
Executive would attempt to interfere it would 
be a V iol itiiin of power. Now, if this is not the 
dependence of one co-ordinat'i branch of the 
gove I ment upon another, I confess that I do 
not understmd the principles of government. 
The iramersof our constitution c.nsidered 'at 
the m n who should live aft r them woulil be 
liab e to err, and iherefor- these, che' ks nn I 
balances of one department of government on 
another, was ere tid. 

This Leii- siatuie, un'ler high political excite- 
ment, or under a 'iisapprehen-ion of what were 
their powets, might pass >ome laws that, might 
not be in accordance with the fundamental law 
of the land, and there ore the courts of the 
country were created for the uurpose of exam- 



ining and revising their action. When the Leg- 
islatrue declare* an actol the Assembly to have 
been jiassed by them in accordance with the law 
of the 1.1 nd, then it is obligatory upon the people, 
but if it is declared by the courts to be uncon- 
s iiutional ihen it has no force. Now, this be- 
ing so, is this a po itical conflict between two 
departments or tht- government? I say there is 
no coni'ict between these junctions at all. The 
ac ion of the jiid. clary does noi propose to in er- 
fere with the enactment of laws hy the Legis- 
lature; it simply declares that they have made a 
law in violationof theconsiitniiim. There is no 
'Onilict at a , and ill such things ought to be 
d S'-ariied I do not regard this as a polirieal 
question at all. Now, tlie Legislature of Ten- 
nessee was constiiut d by a convention that as- 
sembled in Nashville. By the cnstitution 
wnich it adopted, provision was made f 'r the as- 
semblinir of the Legislature. The Legislature 
d.jonrned until November f Uowinv. In the 
interim the Gover'^or called an e.xtraonlinary 
session The Legislature ad.iourned, nu sine 
dte as will be observed, but to me ton a c r- 
ta n day. An'l here the qufstion raigh well 
arise as to wliether the Governor had power to 
call an extraordinary session; but I will not con- 
sid r th it question. The House meets up nits 
own adjournment.. It had adjourned to a given 
day. If they adjourned to meet on the second 
day of November, they had not a'ljourned sine 
die and iheie was no necessity for a call The 
Legislature being in session, had control of its 
own ailjou nmeut. But the Legislature was 
called together. But some members' f tne leg- 
islature said they « ere opposed to doing what 
tne Legi-lature come npiated, and thereupon 
the members of the Legisl ituie arrested them. 
T e mi mbers of the Legislature who « ere ar- 
retted, u.ade out a petition lor a wi it of habeas 
corpus, siyintc that they were illegally de- 
tain' d Th ju tare issued the writ nf habeas 
corpus. TheSergeant-at Arms was commanded 
to bring these men before him. The 
men were not brougUr, but a return M'as 
made by the Sergeant-at-Arms, stati g why 
these me were not \ r duced. Ihe judge per- 
mitted the investigation to be made in the ab- 
sence of tho-e parties who w re in cu-tod}'. 
The judge iiecided that they were illegally held 
in durance vile, and theret'ore ordertd iliem to 
be dis'liarged. Now, the only question is, was 
the action of the judge riglit? Did the tacts 
state! in the petition" authorize the judge to 
granr, the wiit? Now, show me wheiher there 
IS any other question in this whale - ase? What 
duty had th' jurUe to pert.>rm? The constitu- 
tion required that whenever a partv is illegally 
ris I at ed of his liberty, the writ of halieas 
orpus should be granted. How WaS Judge 
Frazier to determ ne this question? He had no 
ri.:lit to bav' any feeling in it, an i ac 'or ing to 
the proof in this case, ii he had any feeli' g, it 
wa^ against thuse who asked for the p'tition of 
habeas corpus. Here is aciiizen that comi) ains 
thai he is h' Id in custody by the .sergeant-at- 
Arms under the authority of the Hous ifKep- 
resentatives; then he calls njjon the man that 
held them in . utody to bring the prisoner for- 
ward The petitioner sa.vs, "1 am heid liythe 
Sergeant-at-Arms under a pretended resolution 
O' the House." >ow, in order that Wf! may un- 
derstand whether t is bodv that had this man 
under arrest had the audiority to hold hin, we 
turn back to the constitution : The eleventh sec- 
lion (if article the second of the con^tituton 
reals thus : "The Senate and House of Keiire- 
sentatives when assembled, shal each choose a 
SiCaker and its other officers, be judges of tne 
qnalific tions and election of ts member.-., and 
s tupon its own aijournments from day to day. 
Two-thir s <if eacn House shall constitut a 
quorum to do business; but a smal er number 
may a jonrn from day to day, and maybe au- 
thor zed by law to compel the a tendance of ab- 
sent members. Now, what would any man im- 



178 



derstand that to mean without any explanation 
or an J' argument? Thj,t less than two thirds 
c )uid do no business whatever, except to ad- 
journ from day to day. Now-, it is not necessary 
toqibble.tbout plain propositionsoi lav. What 
is meant by that term tow? Why, som • ge tl - 
men havt- giv. u you the rules of law— going back 
to lilackstime. Zaic— in general accepiat'on — is 
a rule; in i s Ifg d sen^e, it is a rule presdibtd 
by a superior to be obeyed by an in erior, a law 
that opsra e^ upon nil thu pi ople alike. If this 
hon >rable court please, I want to disabuse iheir 
minds u on a very impo"tant point, ihey sa}' 
that the Legislature • as p )wer to do so ami so, 
whicti I adm c. Then the que-tion th y avoid 
is, what i, ihe Legislature? I', is a House duty 
organiz.eii. But tae prosecution h.ive simi ly 
begged the qurs i.m. vVe siv that the Lepisla- 
tuie was Oiganized in 1865, under the rules 
made for thegoveinment oi th ; Hou>e It was 
argued thac tne rules made in 18 5 continued 
unto iliu present day, and that, therefore Judge 
Fr zier niu^t have known it. 

But if the>ewere twenty sessions m the year, 
and you were to meet twenty times in ttie year, 
yru would liiive lo re-adopr your rules. I mean if 
you a journ sine die. But heie is an aig mem 
ihat you hiive had a rule standing upon your 
Stat ite book since 183 i, and tha' Judge Fiazier 
must have known ii, and if he did not kjiow i', 
he- was e.xtiemely iifnor int. [Judge B leu Mere 
ref ried to section 98, of Cusuiiig.J Niju-, here 
is law tiiat the gentlemen indoise. They >ay 
that Juiige Frailer ugh . to liave kno ^ n > hat a 
rule was s .inding fioni 18;3i, and hat Ju ge 
Frazier ought tu be held rejponsib e t > ibe rule. 
But a rule ijf tne House expire? with iheal 
journment o' the Leg slature, and lias n > bind- 
ing loroe with th following session, now, let 
me sk whettier her was any rule adopted at 
this extrio diuary essiou? Tlieir journals s ly 
that tbey adjourned Irom day to day I'.ut sup- 
po ethatilicj dge tiail decided e.^nctly right, 
would it have beeu any ground of iinpeaih- 
menti' Woidd you turn him out betause, al- 
though he decid d ri^ht, he did not have ihe 
fac s uei re him? I bulieve that there were only 
forty- iue present when that re?olution was 
passed; at any r te, it was less ihan a quorum. 
JMow, less ihan two-thirds cannot do > usiness. 
JQow, t lesrf aie l.gal questions, in which ih- e 
is i.o criminality. 1 du not say that tne House 
of Hepreseiitatives committe 1 what th^y be- 
lieved to he a wrong. I do..'t charge that crime 
up .n them; I think they exercisi-'i what ihe* 
believed to be tnei privi ege under the c nsti- 
tuiio i; and 1 only ask that you attribute to 
Judge Frazier as honest motives as you claim 
lor your,-el es. 

3Sow, it will be keot constantly in mind tlen, 
when I say the House of Kepreseniatives I do 
not mean that thei'e was a quorum present. 
But a cording to this constitution, with le-s 
than a quorum, that bo ly had no authority to 
pass a rule any more than L had. But I may 
say here, that no .ct of iheBiitish Parliament 
has been a touted here by special leg slation 
siiice that time. The common law, in ilie ab- 
sence ol s atutory, governs ami conciols to-day. 
But wherever tuere is a statute law it contra- 
venes the>oinnioa niw, it is in force. W.ere 
we have a statutory law, it supercedis the com- 
mon lavv. uur constitution is above iJurliameii- 
ta y law. It ought to be, because it is a fixed 
rule established by the people themselves for 
their go vermueiit; nob -dy his arightto contra 
ve le It. But when men undertake to ilepart 
I'mn plain piiuciples of law, ihey aiwa>s in- 
volve "tbeins Ives in dilliculty. Now, there 
were eigh.y-four memiiers ih re, it to .k flfty- 
six to make a quorum ihey say, li >w do we 
know tnatV 1 liave got it in thescliedule tj the 
amended constitution. That schedule was de- 
clare!, by the Supreme Court at its bst ses-ion. 
to be a part of the eon-titutioii. The twelfth 
sccuon of the second article of the constitution 



provides that "Each House may determine the 
rules of proceedi gs, punish its members for 
disorderly benavior, and, with the concurrence 
of two-tliinls, expel a member, not a ^eond 
time for the same offense; and shall have all 
other powers necessary for a branch of the Lcg- 
isla ure of a free Staie." Less than tifty-six 
members do not con titute a quorum, but if you 
have a Sergeant- Arms, you may pun sh ihem 
for conteiiiiit, and mny send your S geant-at- 
^rras after them, and you mav protect your 
House Irom insu't; but, unless you liave a'quo- 
rum, you c nnotdo an busines<. and you are 
not a "House, because you are not competent to 
do any business. Now, I say, that in the ab- 
sence or lifty-six members there was no quo- 
rum. [ ouiisel here read from Cushing, sec- 
t on 36 I, and also 2o7.] Now, if you convene a 
h'SS number than aquorum. tl\e> may,ofeourse, 
r. snrt, by law, to compel the attendance of ab- 
sent member . is there any thing plainer than 
that, under our constitution, which provides 
that you may compel the attendance of absent 
members? Does any man who aspiies to the 
dignity of a lawyer or a Senator, lail 
to see this distinc'ion?! [Judge Brien 
read from 2'jl of (Jushing.J But it has 
been said by the counsel on t^e other side, 
that when the Southern Stofes seceded. Con- 
gress decided that two-third- of the members 
of the States tha^ had not seceded shouM con- 
stitute a q.O'nm. Mr. cushing occupied pre- 
cis<ly the s:ime posiiion in rega.d to ■ hem that 
ludge Kiazier does in thi- case. Mr. Cnshing 
was delini g the law, Judge Frazier was de- 
ci'iing the law, and had no more interest in de- 
termining in fav<a- oi oneor (he other, tha IMr. 
Cnshing had. Now, Mr. Cushing shows you 
that esS than a quorum can do nobu-iness. 
[ luilge Brien i-ere quoted 64of ( ushini;.] But 
Mr. Maynard tried to • vade that. Me -aid the 
II use was con titu ed, having been a j ur ed 
over rom a preceding session. > ow, I contend 
that less than « quorum was not competent to 
enact any law; bit Juilge Frazier tidi ks that 
m his action he did right. The g. nth men on 
the other side say that Judge Fiazier vi'dated 
the law— iha he did wron,--. I hey arguethat 
ii- ac e I willfully, c irruptly, iind knowi'gly. 
and t lat therefore he should be ■ isqualilied 
from his ollic ■. Hut ; ere we have tlie c mst tu- 
tini ami the law upon this subject. I has e paid 
a great deal of atte tion to th s subject, and if 
I am not rignt, you can throw my argumem 
awav. 
Feuding the argument the Senate adjourned. 



IHUKSDAY, MAI S'^Th, 1867. 

The Senat was c;il ed to order at ihe usual 
hour. Ai the members lieliig present and the 
minutes read ami approved Judge Brien con- 
clud. d his araument as follows : 

ftlr. I'resiileiit and gent emen of the 
court, at the adjournment on yesterday, 
I was nulling the argument that facts 
were pre-eiited to the judge to show that 
tlie Leg slatur • was not ogamzed aecording to 
law. read the constitution an our own laws 
in reference to he organization of the Legisla- 
tu'-e. I s id then that where we had a law 
goveriiii'g the orgmizadon of our Lenisla- 
t re, that supersedes all common law and 
and al parlia nent iry liw. I(o tended th 'it 
two-thirds of all th- me nbers entit ed to rep- 
resentiiion m st ennstitnte a quo um. Y ster- 
day I showetl that under our consti iition and 
laws we h id eighty-four members in th*- House 
o lleprcs ntatives. I contended also, that ihure 
was o quorum present '» hen Williams was ar- 
restfd and br u<..t beiore the House. I sup- 
ported th s argument by referring to the jour- 
nals of the House. 1 called it "the Hon e" for 
onven ence sake. There was not a nlUcient 
number of members present to do business, and 



179 



to arrest and punish one of their members for 
disonlerly conduct. The nicmbeis of tliu l^eg 
islature di'l not undertake to trau-act an)' busi- 
ness Wben the vote came to be taken the 
doors of the committee room were thrown open 
and the iKimiis of Williams and Martin wei'e 
called These proceedings agnin t thi se men 
■wee prior to that time. From the 4ih of Ju y 
xiy) to that time there was no quorum, and hence 
this resouhUHin that was passed directing these 
men to lie arre^ted, was not passed by a quo- 
rum. I have shown by our constitution and by 
the authority of Mr. Cashing, thit whei-eveV 
the Constitution n quires a particular iiumber 
to transact business, ihat less ihan that numb r 
can cio nothing but a'ljoiun, no question can be 
acted upon. But as I have said before, pirlia- 
mentaty law has nothing to do wi h this cas-e: 
common law has nothing lo do wiih it. 
What is common law? It is an estab'ished usage 
rha ha^ been in vogue so long that the memory 
of man runneih not to the contrary. We are 
then not governed by the common law, or by 
parliament;iry law, tnit by our own constitu- 
tion. Now, Wi'liams was ele^ tet a member 
of the Legi>lature Williams cho<e not. to Ije 
pesent. rhe members of the House legarde i 
this us an infracii.n of their ri^ihts. I don't 
intend to imput- any improper moives to the 
House, nor do ) deem it neceasuy to show tnat 
their acts were wrong psr se limpute no im 
proper moti > es to the H. usi-. They conciud<d 
that, wi h the lights they had befi^ie them, they 
had the power to arrest these men and comp ;i 
them to ausuer for what the.v regarded as a 
contempt. But, as I say, as there was no 
quorum pres nt, the House had 10 power to do 
such a thing But, then, the gentlemen ou tiie 
other side say you have no rigit to inouirc 
wi.etner the House had a quoru .1 o not. Now , 
do g ntleinen suppo^e tu t they can deceive an 
intelliirent c urt likf this by such an aigument 
as tha ■? What do you call your ro'l 101? It 
is to show tnat all the mem'bers are pr^ sent. 
The constitution says that less ilun wo-thirds 
shall n.'t be competent to transact business, and 
you call he roll to see wh- ther you have a 
qnoruin or not. But when your acts' are passed 
according to law, they ;.re b;nding upon the 
people 01 the State. The libirti.s and well- 
being of the people are involved in tt.e d ci- 
siou wh ch you make. And will it be in- 
sistf-d on by any gen leman here, that th-; 
Legislatuie is so far above theai that you 
cannot inquire whether they have confor i.eo 
to tire fondamenial rules by wliich they are 
to be governed? 'crcinly n«t 1 he couit-i 
have dec lieil, and the books have b en read 
to you, a id I don't intend to take up your 
time by reading them again, liut ihe courts 
have the light to diterndne tl e leg litv o tlie 
laws ol the land, and they have a right to go 
to the jo'irniis and look into thein to see 
whether there is a quorum or not. Ii an act 
is in accoidance woh the coi.sd ution 'f the 
State ofTei.ne soe, ihen, pHma/acie, it i- right. 
But suppos*^ that an act, of the Assembly ha I 
been pas ed by a lessnumber tnan that required 
by law, how c -uUl you ascertain this except by 
relerr na to the journals, and seeing whether 
the required number were present or 1 ot? 
Hen e, the courts have uniform y decided that 
you may go heh ud the act itseli in order to 
see wheiher there was a qu^ rum or not If 
there wa- aquorum, their 1j,w would betiinding 
upon the p.ople of the St.te. Now. I am 
arguing a question in which thi country is 
eminently in • re.sted. It i^ not with a vie w to 
rlispa age any department of the goveinment, 
I discUim. any such puinose. but 1 will ireat 
ths que tio as I would ah . other question. I 
regard you , as nothing more nor less han a 
court, and if I can show you that a co ordinate 
d'paitment of your gov rnment has done 
wrong, then I expect that you w 11 treat it as 
any other court wouid. Now, then, if there 



was no quorum present, then the acts passed by 
the House were simplv a nullity. I believe that 
Judge Frazicr was right. I insisted that he 
was right, and he, thiou h me and h s other 
counsel, insist to-d>iy that he was right. Wc 1, 
now, let us sve if there was anvthing more that 
required Ju'ge Krazier to ilo wha he did They 
sairl that this writ of habeas corpus did not, re- 
quire him to do anything but to exercise aa 
erdinary souimI di <;ietion, and that he was 
bound to do it, that in doing it he was wrong, 
a d therefore he was responsible. [Judge 
Brien here re d from the 2d section of the Bill 
of Kights. showing that all power was inherent 
ill the people.] Now, it is ch.rgeo that there 
was a conspirac\ between Judge Frazier and 
the i-eciisant members of the l^egislaturj to 
bre k up the General Assunbly. But whit is 
the evidence of tiiat? Did Judgp Frazier know 
I hat members would go away to prevent a 
quorum? They sa\ that thi re was a good d al 
of excitement m the connnunity. Did Judge 
Frazier know an} thing of thai? Nobod\ proves 
it. But they do' say that one o' the counsel 
n.ade a speech at She'lbyville, in which he stated 
that he was for the overthrow of Browniovv's 
government, and tnat, therefore, there was a 
plan on foot to overthrow the government, and 
that he was the ■ hief of it Now, the proof m 
regard to that case is this, tharaspt? h was 
made, in wh ch it was said that ihe days of 
Bi-ownlow's government were numbered. The 
quesiion was asked, how was ir. exi ected to 
overturn Browiilow's g- vernm< nt? The answer 
was, by the vote of the people. How are you to 
arrive at a vote of the people? By calling a 
convention to chaui^e and modify the coustiiu- 
tioii, so that, all male members ofthe State, over 
twentv one ^ ears of age* could vote, and that 
ihus Browulow's government woubi beovcr- 
tumed. The quesiion was sked, what 10 you 
mean by Brow nlows government? The ai swer 
was, Br iwnlow's administration of the State 
government Now, was that a conspnacy to 
overturn the State government? The Bill of 
Kights says that all power is iiiheieut in the 
people. The people have p wer to s, nd dele- 
gates to the convention to modify i heir ^tate 
g vernmeni; is that conspiracy? but, in every 
election that we h ve had tor the last lorty 
years, there has been a desire to turn the 
present incumbent out of office Is that any 
evi'teuce of a uCsire to overt row t le govein- 
men ? According to their argument, Judge 
Fj az er must have known that there was a con- 
spiracy. But where is the proof? From boy- 
hood to this day he has been the a-iend ol the 
government. He Has periled his lile, and 
hazar ltd his p onertj' and reputation for its 
sii,iport, and becau eS'meoi e v\ anted 10 ;. mend 
thet>rganicla\v of the .'itatjso as to allow every- 
body to vote in a free government like this, it is 
chartc- d that there w as a conspiracy to over- 
turn tiie government Judge Frazier, accord- 
ing to tne artiuiuent, is held lesp usible 
for thedi-afl'ecliou 01 the memliers ol the Gen- 
eral Assembly. Besides all thi-,. Judge Frazier 
is 10 be hel I respo si Ic for articles i p rtizan 
newspa,,Grs. Dt 1 he ever have an; thing to do 
with the p .pers? As a judge, it is his business 
t keep himself aloof from the press and from 
politic , iiecause he is 10 pass sentence upon all 
p(jlitical parties without regard to v,heir tenets 
one way or tne other; and y< t to fix upon hiia 
corruption, which ttiey see must be done be- 
fore tiiey can convict him, all these extrau' ous 
CI i-cum stances are referred to, and are charged 
against h m. They might just as well have 
charged that he was concerned in the Fenian 
movement. They might just as well have 
cnargtd him with a rebellion in any foreign 
couutr). But I hink I am warranted rom my 
knowledge of his character, in saving, that he 
only did nis duty in with irawing himself from 
poll ics and newspaper editorials. His charac- 
ter warrants that. But they say that character 



180 



amounts to nothing. One gentleman sai'l his 
character w is like a whitcrl sepulchre beauti- 
ful on the outsirle, but rotten within, ami t'uli 
of deail men's bone-. He whs obligeil to say 
that, tot- so far as I know there mvi^r was a 
purer character pre entecl than that of Judge 
Frazier. tie was obliged to say that sepul- 
chre was wliieon the nut ide;but it was left 
to his extraortinary visioa to see that in a 
heart that nobody else could see',there wa^ rot- 
tenness and corru|iti<in. But then they turn 
round and say that though his cha-acter might 
be as pure asthat oi any man that ever lived 
on the r.ice of tt.e earth, that the higher the 
character the greater the crime They say that 
he is whitewashed on theoai^jide but that his 
heart is iioll w and corupt: and in the next 
breath they say. tha although Ju'lge Frazit-r's 
character may be pure, yet, nev. riheiess, be- 
cause he his committed a crime, it is the more 
important to make an example of him. But is 
it to be said that the lab rs of a man shall 
amount to nothing, whose wtiole li e has lieen 
devoted to his count'-y, to the intere.-ts of soci- 
ety, to I he happiness ■ f his fnends, and to the 
religion of his God. Then, indeed, we live but 
to little purpose. It won't do to attick Jud^e 
Frazier's character, because it is pure nd un- 
sullied, and no fine c n see coiri'ption in it ex- 
cept gentldmcn on the other side The arffu 
ni' nt goes fui-ther— that he is huntiiiir after 
soni'- Troian maid, u hat is meant by that? 
Judge Frazier is to be compare i to the exam- 
ple of the Grecian General who fors lOk liis 
kingdom for the purpose of illicit intercourse 
with a whore. What whore wa there exhibi- 
ted in this trial that he was pursui g in order 
to gratify his carnal, or iiellish lust--? What 
purpose could he .-erve by it, and \vh vt aivm 
tage w oul I it have been to htm if th.- Legisla- 
ture should have b-olien up? The i sinuation 
that theie mu-t dave been brought t < bear upon 
him, some;hiiig which gratiti>s animal pas 
siou, or ihat othe wise Judge Frazier would 
not have aced in 'his manner? W(dl, I sav, 
whoi ver entertains that opii ion of Judge Fr i- 
zier mistakes his charicter. Those wi'O have 
known him from boyhood — that have assocated 
with him in youth in ma hood in liper years, in 
old Hge. will say thai a p rer man never lived. 
Now one of trie gentlemen has compared this 
case to a hal' tha was a 1 da'k wittdn, but 
through the wall of which a ingle ray of light 
wa- allowed to enter. But I appre' eoil that he 
is the only one that saw that litile str ak of 
liiiht. It was a very extraordinary flight of 
fanc.y. In all my reaUng 1 liave never seen 
anything that exceeded tn vivid imigiia'ion 
of the gentleman, except in one -mar einstmce 
A little boy VI as once requires by his faiher in 
the winter time, to go out and get so i e wood 
to mate a fire He said he ou d not find the 
axe; it, was covered up with tue snow. Will, 
said the father, can't j'ou liud some dry limbs 
somewhere? No, said the boy. Well, said the 
father, can't you go out anl rustle up the snow 
and find some chips? Wt-ll, no, said the boy, 
yiu 'an 't get me to go to rustle up th? snow; I 
might find a rattle-snake in lustling up the 
snow. That boy's imaginat ou was very vivid, 
to b' able coijureup a rattle-snike nesting 
beneath the s ow. And it required an equ. lly 
inventive and vivd imagination lo see that 
theie was corruption in Judge Frazier's heart, 
from this little streak of light that entered in 
througli a chink 01 the wall. M w iheprool'has 
failed o show that th.re was thesliuhtestf >un- 
dation on earth to suppose that Judge Ft azier 
had anything to do with theconspiraiy to break 
up ihi Legislature and overturn the govein- 
ment. But it has been said that -ludgc Frazier 
had no jurisdiction over this case. Yet the 
circuit court and the criminal court are tourts 
of gem ral jurisdK'tion. The Supeme court of 
Tenne-see is a court of appellate jur sdiition. 
It has no original j urisdiction. such arguments 



as this are calculate d to mislead. The circuit 
court has no more general jurisdiction than the 
ciiminal couri;. It isc'aim'd ihat there is no 
such thing as a court of general juri diction; 
but! holJ that our courts are al ireneral in 
their nature, and when tliey determine a ca-e, 
I say they ;iro not responsible for it unh ss you 
show that they have deteri-uined it corruply, 
thenthevare responsible like individuals. Sec- 
tions 3';2i, 3:21 and 3722 ol the Code, are to the 
foi'owing effect : "Any person imprisone'l or 
re-tra ned of ids liberty, v.nd r any pre ense 
whatever, except in cases specified in tie next 
session, may pioseiutea writ of hatie is corpus 
to inquire in o the cause of such impri-onmeut 
ana lestr int "' 

Persons c mmitted or detained by virtue of 
process is- ned by a court of the tnitetl States, 
or a iudge thereof, in cases where such jud es 
or courts have exclusive jurisdiction unner the 
laws of the United -states, or have acquired ex- 
clusive jurisdiction by the comme. cement of 
suits in such courts are not ent tied to the btn- 
etits of tiiis writ. 

Appliration for the writ shall be made by 
petition, signed by either the party Jor whose 
benefit it was intendeit, or some person on his 
behalf, and verified by affid-ivit. 

J here IS a wisdom in th s th it I would love 
to contemp'aie. A citizen under this bill of 
rights might be hell in pri.-on so that it would 
be impossible for him to get 10 a judge to make 
his petition, but it is provideil that a friend 
may go and make his petition lor liim. Seciion 
3729 of the Code, provines, that "It is the duty of 
tire court or jiulg'^ to act upon such ap lication 
insta Iter, and a wrongiul and willful lefiisal to 
grant tne writ, when pmi.trly appl ed for. is a 
inis'li meanor in oitice, besides -ultjeciing the 
judge to damages at the suit of the jiarty ag- 
grieved" Now, when a petition is presented 
to a judge, he h is only to 1 ok at the farts .-tated 
in the (leiition, and it" he denies the writ, he is 
subjecteii to penalti s Now, ithas been argued 
On the other side, that perhaps Juoge trazier 
might have grantett ihe wrt, but that when he 
got the part es befo e him he ought to h.ve de- 
leiraincd the other way. Another gentleman 
sa\s, i ought not to have been issued at all. 
B t Ju !ge F azier was bound to issue the 
writ, if sufiicient farts \vere stateel in the peti- 
t on. But Air. He,\ dt did not br ng the mem- 
bers befo e Judge Frazier, and his ri ason was, 
that he was forniddeu to do so by the Legisla- 
t re. JudtfC Frazier deemed the return insiifli- 
cien bee .use He^ot aiimitted that he had the 
defendants in his custody in the Capitol, anel 
that I lie reason he did not bring tliem was, that 
he was foibi den to do so by the House of 
Hepreseutatives. Now, there are only two ex- 
ceptions known to writs of habeas corpus, 
when the party is not to be brought forward 
— one is, where he cannot be found the other is, 
where, from ^ickness he is unable to be 
brought into court. But Jud.:e F azi' r did 
not lequire the parties to le brought in- 
to c urt. Hf heard and det rmined their 
casein their a'lsence. Now, they say, that al- 
though Judge Frazier might tiave had thep iwer 
to issue the writ, that wh.'ii the pri oners were 
brought bifore him, he ought to h ve deter- 
in ineel otherwise. Well, it is a egal qies ion 
between them and Judge Fr izier. Judge Fra- 
zier detd mined that Vvilliams was improperly 
held in custody, and he 01 deivd him 10 be re- 
lea-ed; it was refus el. and therefore he issued 
his attachment airainst Heydt. Ihe nentlemin 
who last adelie sed the court on the part of the 
State, takes Judge Gau to ac ount for having 
read what the .aw prescribes as the eluties of the 
judge under such c rcumstaices. Tney say 
that Judge l<"razier nidvery wrong in being in 
theolUceoi an attorney Butju getiaiuicad 
tiie liiw as to th power ot the sheriff to arrest 
thep'ison r. Now, Mr. Maynard t. lis us that 
Judge Frazier said ^'wait; do not do it until 



181 



morning." The inference lieing, said lie, thit 
in the morning you may break upei' tlie Capi- 
tol, and sretth<!-e men. Jii<lgc Gaut .state!, that 
Judge Frazier said, "that may ue the 
law, but there i- no neiissity for it; 
don't be in a hurry"; go bick ad tell the 
men that ycu have the p< wer to take them, 
btit don't commit any violenci* iindvrany cir- 
cnms ances." He says it was a terrible thing 
to break into the Capitol, to expose the arcidves 
ot this government to ihe thieves ti at sur- 
rounded It, and attempts to make Judge Fra- 
zier resiioni-ibl , when he pisitively lorbaiie 
the sheriff to do any such thing. Then he goes 
on, iind says, that judge Fiazier was encour- 
iiging liim to bn ak open the Cap.tol. It is 
said, that because s-im" mm stole Heydt's 
nioncv, thai^, therelbre, Judice Frazier must be 
puni h' (1 for that. But I ask any man who 
lovi s justice, whether such things should be 
brwtig t for war 1 in this way, in order to jmn- 
isli such a man. Judge Frazier, fteling that 
he was authorized by law, d scharged these 
men. J have shown that the Ltgislatiire could 
d" no business in the abe- ce if a quoiiim. 
They co Id pass no law, because it required 
tW" thirds ol the members of the House to cnn- 
stitute a quorum. But, i he mistake they com- 
nii't'd, was, in supposing that they could ar- 
rest their members with a less lumlur th n it 
too to (toother business. Now, I .lOii'' .iiutify 
thi^ course of Williams and Martin, and others; 
I re uiliiite it. They ought to have ■ taved and 
voted like men. A riembir' f the Lcgislai le 
h:is no nerlit to withdraw h ras'lf from that 
body, simply becuue ti.ere mav be a tiroposi- 
tion belore it not in accordance with his fei 1- 
iuKS. VVe must all diff .r on many subjects, 
and e- ch cannot hopp to have his own way. 
ButWil iams too'; a aifi'< re t view, ai.d made 
aiipliC'iion lor a^vritof hahe s corpus. Juaye 
Frazier thoufiht it was right to grant the writ. 
But ihen, they say there is a terrib e thing 
al'out Jurlge Frazier; that he kn- w he was 
iloing wrong. Th' y^ say that Judge Gaut was 
a relative ot Judge Frazier; that Judge Gaut's 
wile and Ju"ge Frazier's wife were, perhaps, 
second tr third ci usins. Tiiey say that be- 
cause Judge Gaut wa« related to Judge 
Frazier, that therefore he wciild have in 
iiuence over him. Judge Fiaz er sfdd "'you 
are Moing to g. t me intu trouble;" and 
thereiore they say, he must have known th.it 
it was wrong." Judge Frazier tad head irom 
his brother that there w'ere n embers of the 
Legislature not disposed to take their seats. 
Of cour^e, no man would like to engage in a 
tiling ot that sort, if he ( ould avoid ti But, 
tliey say, thatJu'ge Frazier exposed the cor- 
rtiptiims of hi heart; all his acts u ere coi rupt 
and wrong. But, I say, tha.. in all my practice 
and i xperience in criminal pioceedings, this 
is the hr-t time I have heard such an argU'v ent 
introduced, 'ihen, they Bay, ihut th y dis- 
missed the broihcr of this dekndant he-ause 
though a Senator, he was not entitled to sit on 
thiscise; and. moreover, th.t ii they had not 
known pusitivey ti at they were right, that 
when they came to hear him testify, they were 
saisli.dthey hail done right. But, thetruih 
is, tha' every one that stands in the way of this 
prosecutiun must bi^ annihilated, m oriier that 
the> " ay be sucrejsful in their one-sided in- 
vestigation. I have always thought that it is 
btstto aecomplish a purpose without de»i rov- 
ing any one if you can 1 have always thought 
that the necessity of destroying any one was a 
great calamity to the comnfuniiy. "l have ever 
thought it the mos'- cruel thing on earth to de- 
stroy any (ine in order to accomtdish less than 
the salvation of the country. Bui. gentkmen 
of the court, in this case I have had but one 
opinion from the beginni! g until now. 1 have 
listened with intense in'erest to all the authori- 
ties that have been reiid on the other side, and 
to the arguments that were made, which were 



able arguments. They were full of sophistry, 
I admit, hut thuse a'e'the most in gen ion,- argu- 
ments, when a man, by his sophistry, is ^ble to 
convince us that a wrong is rit.du I'.ut my 
opi> ion has been the same all the while If 
Judge Frazier had corruiitly done this wrong, 
had viiJateil aiaw, he ought to be punished for 
it. And thouirh you and 1 would regret to see 
a man of his character punished, yet he ought 
to be pnnished if he hud cooimiited a williul, a 
corrupt wrong. But. I tlo say, that in the (cita- 
tion of authori-ies, th ,' garbled extracts the 
hunting, and turning, an<a leaving out. and 
n isconstruing. I never saw a cse like this be- 
1' re [Jit' L'e Brien htre referred at length to 
the impeachment trial of Judge H'Skelk and 
alsii to the ca-eo' Gosset vs.' Howard, in the 
Engl sh Coe mon LaAv Reports.] ]}ut, I ask, 
where has there ten a case in the history of 
th - com try. in which the iudge was impeached 
for his opinion? I ap reheuH, thi? is ttie only 
case. Tnese Lent'emen have charged, in this 
presentment, ihit this act was done, willfully. 
malici'iu ly, corruptly ai d £■ loniiu-ly. These 
gentlemen first argue one way, and then the 
o her. First hey say ths is not a criminal of- 
fense, and that its penalty is only a sort oi little 
civil punishment; and jet they (harge in the 
anicles of imp achment, that it was willfully, 
Knowing y, coirunlly and feloniously done. 
Why did ttey do that? Because the genilcmen 
who drew up these articles knew that there was 
a statute upon that subject which makes it a 
cr niinal oflense, and requires the same preci- 
sion as in an indiciment. Now, they have re- 
fei red to the definition of the word malice Ma- 
lice is a technical term Our Supreme Court 
says, thai malice, in its leg.d siiiiiitication, is 
not particular spite or dl-will, but is a heart 
fully devoid of soiial order, and bent ipon mis- 
chief. That is the definition of your court. 
Why, then, in orde- to exhii it lean ing, do you 
refer to books a hundred and twohrndn d years 
old? Here is a man resjiected in the Si ate of 
Tennessee, charged with a crime. He is to be 
tried according to the laws and constitut'on of 
tin- sti te. 'J hen why not take the legal delini- 
tion of the terms given by our Supreme Court? 
Now, the question is, did Judge brazier have 
any malice? He certainly could not have had 
any 1 submit to thi honorable coxut with the 
proof liefoe them, whether Judge Frazier is 
guily of malice. W. s there any proof of the 
le ist iiegree (T malice? lias he "any hatred to 
a human being upen earth? Has any body 
shown it? Has he done anything to show that 
hedid not d( sire to do ex ict'y what was right? 
But, still, fientlemen would iry to deprive'him 
of his character and to destroy his rtputalioa 
—the reputation of his wife and his prat- ling 
children, because they want to accomplisfi 
son e imrpose or other, let gentlemen so act 
that they may be able to say, 
"That mi-rcy I toothers show, that mercy show 

to UjC." 

I can ask this for Judge Frazier. I ask you 
to put a tinj^er up- n a single spot, in his history 
where he has ever exhibited anythingelse than 
an ardent desire to do justic ■ toeverybody sur- 
lounding him. Then, again, they say felony 
means Ibrleituie. Well, tt at was a singular 
expression "forft iture !" Suppose we put it 
into an adverbial form, and use it as the 
svnonyii e oi' feloniously. Suppose you sav that 
A or B willfully, maliciously innX forfeifurely 
took away my horse 1 Now, lelony has a legal 
meaning as well as anythingelse What !•> it? 
That it was done with a wicl<ed, depraveti, 
unjust heart, that it was a crime by which 
another person's liberties wi re to be forlVitetl. 
Felony means a base crime, for which the party 
may be m. de not only to forfeit his Ii trty. but 
to forieit his birth-right. It is charged' here, 
that Judge Frazier has been guilty ol a feiony. 
But I admit that gentlemen may have aa 



182 



honest difference, on both sides, as to what the 
law is. But they say that there is no excuse 
for his doing the act he did, that he wa^ bound 
to know the law. By their ref.'rence to Jo<\ge 
Frazi r they have endeavored to belittle him 
before this court. If that csm succeed. I shall 
have bee I wonderfuUy di appomttd in the 
organism of this court. If such appeals as 
that can exciie a prejudice against a man who 
pioves such a character as this, then what may 
not be do e? Judge M. M. Biim said that if 
the ;ipp ica'ion had been made to him, he would 
have letusi'd it. But he and .Jud.e Fruzier 
diffured. But that judge says of .Ju ge FrHzier, 
that his character was as p re as any man's, 
anil vi t I Cj sty that a mi- take or an error in 
judgment is no « xcusp; that V e judge must he 
helu to his act, whether it Wi.s int'-ntionally 
done or not. I deny that, I say tne law is not 
that w ry. [Judge Briin here read from 
Humphrey's Ueports, cimmeu'-ing at p 15'.] 
There is the whole doctr.nn, it Is the f ■un^fa- 
tion stone of all criminal law, from Lord Hale 
dow to the present time, running ihrouah 
Biiickstoiie, and Wharton, and Wheeler. Now. 
snppos th tt Judge traz'irsh uld have he n 
wrong who is to determine ii V ^ ou How are 
you to determine if? By ih; cons irutioii and 
the a\v». Y' u have some power to judge anc I 
detennine in n^ierence to ciiis case. When 
Juilge i razier tried this m^n on the wr t of 
hab as C' rpus. his decisi n w s final. I helieve 
that he de ided right. But you are responsible 
to the laws of this laud, and your act is finai 
ana there is no afp'-al fro o it. What yo put 
dovt'u up m rei-o -d here st nds as supreme. So 
power oil earth can reverse ic. Heucc;, it is just 
as important tor you to take time to deliberate 
as it was lor Judge Krazier. But su pose you 
shoulu couciu'ie that Judge Fr.izier wa- wrong, 
tha. is, that he decided tne liw wrong, I would 
simply say that you were wi'ong in yo r eci 
sion. Jt eemi'd to me th 't th first argun ent of 
the gentleman was to establish the fact tiat the 
judge haa committed an error, and tnat after 
he had committeil an error he must be expei ed, 
turned out of his court in iiisgiace, and d s- 
quaiilied rom holding oflice undi-r the State 
gover ment; that was the tendency of the 
arguuuii . Suppose you should de ermine tliat 
Juiitie Frazier actually decided tins case wrong, 
that" he decided it contrar to the eoastitu ioii 
and law> of the State of Tern essee, then that 
Yi dicate- your character; but what does it 
amount t -V It amounts to noih ng, so far as 
Judge Fiazier is concerned, tx t i t a reversal 
of his judgment. You revcse it ami say hai 
the Le^i-jlature was rit;ht and thi:. the court 
■was wro g; you establis-h a piecedentih i a 
smal er i uialitr than a quorum may have its 
members arrested and tried an i punished 
You viu icate and asserta ■ Oi-trme which my 
friend, Wr. Trimble, seems to ho d with gnat 
tenacity, namely, the sui'reinacy of the Legis- 
lature, i ou also practical^ asseityour b 1 ef 
that the i egislature was aliou to be broken up 
Trie' , you have a!so to deci e not only th t 
Judge 1' rjzi r determined hat qu st on of law 
wr. ng, but that he did it coiruptiy, feloniousl . 
ai d malci usly. Now, I cjiiinoi tell what 
opinions may exist in men's rnind^ upon le^jal 
propo>itiou.s. Itellmycli nis sometime-, \v hen 
th-y as ^ me what I rhink about iheir case, 
that I ca..not tell certainl . Isay that I have an 
opinion ,ii)out it, liut tint I c.innot tell the feel- 
ings (if other minds; they may see the fact 
from a dillV- ent stand-point 1 1>> n my elf. But 
this coun can vindicate the ction of the Legis- 
lature, a- d also vindicate the righ s am clnr- 
acter of an honest man, by sayiim th i he was 
not guilty of any corrup i n And they may 
say tnat, although he has coiiiinitie<l an e ror 
in regad to law, that his coaract r is ibove 
reproach, ih t they cannot inflct pimishuient 
upon iiiin. Then you would do what the Su- 



preme Court does every term, when it reverses 
the d*>cisions of ihe lower courts, and says the 
judges, in any particular case, committed an 
error; we then send the case back to be tried 
again, liut we don't say because he 'onmitted 
an error, he did it corruptly, willfully, mali- 
ciously an 1 feloniously. This would sap he 
very foundations of government itself. But 
stipoose the court should say he lommuted an 
error of ju gment, a d di i it corrupty. ^vill- 
luUy anil maliciously, what so; t ot a pri c dent 
woii d that establish? How would .hat effect 
the judni ryV But Mr. Presdent and ten le- 
men of the court, I am protctimlly grateful to 
>oii, no for my-elf, but; for my c ent. Judge 
Frazi r, fo ■ tie attention you have gi en me, 
and I will detain you but afewminuies 'oi ger. 
I warn to make ime single remara. The trenUe- 
men on thn other sid- have none t very i hing 
U( on earUi that mortal man co Id I'o, iii order 
to prejudice this court against .Judge Frazier. 
It has been stated that we were voluntec r coun- 
sel. I voluiU, ered for Judge Fr zie- ; I don't 
expnct to get acent. I have been wo^-uii g here 
lOr f 'ur wt eks; lor wh^t? for reputation? no 
sir, I don't rare about reputation. My da^ is 
prettv well run. I don't wan unvrfti'e, lam 
v> orUing for Judge Frazier, for what? because 
I think his cause is just, and whenever a i oor 
mtn c .me to me wiihou' a do lar in his pocket 
with a cause that had merit in i, I never turned 
him off in iiy lift; bee use hi- h li no monev to 
prosecute his suit. Thai is not Judg Fr zier's 
case e is able, perhaps, to pay, bu 1 chose 
to volunteer for h in. But it is nrjic i a an 
oijection, that gentlemen volunteer or him. 
1 h y have also said that the man who drew the 
petition was a Senator In ihe -outhern Con- 
federacy, and reek ng with treason; amau who 
is ht-re prai-ti inu- law in the eity and they 
want to 1 rejiid ce Judge Frazier's case bi-c use 
Mr. Colyar may have appeared at the trial for 
a writ of habeas corpus, perhaps at tlie instance 
of Martin and Williams he appea ed, and 
because he happened to have been in tm- .-outh- 
ern Confederacy, and was a n ember oi the 
Con iderate CoiL-^ress, it is to be urged as an 
objection againsr, him. N"W% I think that is 
unjust and u. f dr on the par. of great men. 
Little itlows just S'arting out, making their 
m iden speeches in the courts, might, p. rhaps, 
do that lOr the little fellow^ are scared when 
they start out, but I don't think it i ome- with 
good gra e fr 'in men of legal learnii g, iiifn of 
iruh positions in soci ty, to panoer to these 
little prejudices, to the injury of one w ho never 
did morta man any harm, that we know of on 
eaitli. Judge Fraz'er's case, so f r as I aia 
concerned, is in j our hands I ne d not tell you 
you iiius do his or do that. You ar- sworn to 
irythts CISC according to the 1 .w and the evi- 
den e. Your loimer position- in life, and your 
pre-ent po--i ion area sufflceiit guarantee to 
me that the facts will be regar. cl. \V h-thtr 
the ca^e I e de ide 1 f r us or ibe other side, I 
cannot tell, \ou have to determine. Wh t ver 
you may do.'Ux s the fateof Julge Fraz.ie for- 
ever. What any one may -ay, need not aad 
ought noi to aii'ect your decision. I ask you, 
when \ou come to investigaie this case, to put 
Nour han i up n >oar heart, and, in thesig .t of 
Got, to pionounce such judgment as v our 
heart di t es as right. Mr. Maynarii said that 
the heart had nothing to do with this thin*!, that 
it was mind altogether, our -Supreme Court 
^ay that malice is the evidence of a wicked 
heart that is devoid of social du'v. Lei your 
hearts and ndnds conspire to do justice toJudge 
Fr zic', and whatever your dec. sion m ly be, 
we h .ve to bo>v to it, whether one way or the 
other. You have the responsibility oi i , and 
not we. Tuanking this h 'uorabi • court most 
profoundly, I submit the case, so far as I am 
concerned, to their impartial decision. 



183 



ARGUMENT OP [MK. EWINO. 

The following is the coucluilirig argument of 
the Hon. Ed. H. Ewing, on behalf of the re- 
spondent. 

Mr. Pres-ident and members of the court, if, 
in this CHse, we are to iiiopt the maxim, Sains 
popuU suprema lex , "the safety of the people is 
the suplem^• law." and if, muler that maxim 
we ar<' to adopt the rule ot nece-sity in our 
appro !ch to this trial, I fold my arms at once. 
}\eces.*ity knows no law; it is its own law, its 
own ju ge, and from it there is no appe I ; but 
I appreii- II' , bir, ihat^^e do not low live in 
tiin< s when M'e - ha 1 be driven to an appeal to 
the law 01 1 t'cess;ty. ttate necissiiy IJas ever 
been th ■ pi a ol tyrants. 
Bes dura,eireyninoveta8me talia cogvnt Moliri 

Vii ki. .ivi.* si , 1 appiehend, un er a constitu- 
tion a'Kl laws. No man is tno high lor the r 
rea- h, a<(l noman too low for their grasp. The 
Legis atuie, the Executive the judicial powi r 
of the late of Tennessee are ali the i-re tuies. 
anil subje<-r to iLe provisions of the consiitu- 
tion aid lie laws. Tlnir powers their provis- 
ions, the r duties, are all well defiutd; ami the 
vi- iat -rcif these laws and of thit constiiuti >n, 
■whether ihit vio'ater be a b dy ol men actiniae 
toge her nr a single individual, can be brought 
to th same ic-t and subjecied to the same rule 
The l-ig smture is one ol th co-ordinate 
branch! so the government, It h s its p wer> 
and p i 1 ege--, hif;h and indi^putai.l • A citi- 
zen h.ts pi!Viles that are as high and indispuui- 
ble h very right that i guaranteed iinder the 
constitiit on. tvery right th t is grunt d under 
the law, !.- a right ha jthigh ^'nd : dispiuable. 
The e m » he, in regard to tht^e co-i rdiuate 
bian. hes of g vemnienv, a relative riegrce oi 
import nee as to the constitution of >o iety. 
One ma be more important tnan another. Uhe 
Xegsiature may be of tii< hii;hest impdrtanre; 
but 1 1 p;e e ve -he right, to guarantee tiie priv • 
iieg s, to sustain thepnvileges f the legislative 
departm. nt, is no more imijort int to the pres- 
erva i n of government and society, than to 
preserve ihe dignity, the pi ivieye-. the lights 
of e tiier of >he other co-ordinnie b.anche*. 
And s a principle, sir, as a precedent, hs a 
guarant e of the liberties of the country, it i< 
no moe imiiorcant to pre <-rve th ■ privile.-es of 
the w liol- Legislature or a branch (). the Legis 
latiue than it is to preserve tn^ pr vileges and 
rjgh s of ti.e humblest of theciiizens if the Ke- 
piiblic. I e;mit a man's liberties, sir, by ue i 
ions of the courts, by actons of he Legi la- 
ture, or Dy actions of the K.\ecuti e, to be 
trampled in the dust, and yon ha\ee talilished 
it a- a (irecedent wh ch will be f nnd, sir, to 
nniie.miuf our liberties and u'terly to destroy 
them. I 'ere are times, sir, in whicn th law 
of necessit is to !:e appealed lo. l don't den \ it. 
That lime may cometo a n piiiilic, or to a king- 
dom, or n\ government n ha tever. in which an 
appe.il to the law of neoi ssity is in vitable. 
Su( h a time dd come to this great national re- 
pnhlic I subscrihe, in adeg ee, to the doet ine 
la.d down by our laie lainen-ed Presidunt— for. 
sir, 1 ameiited him as much as you or any 
othe" man; and I lam n ed him tne nav 
that h ied, and that he did di-. a« I apprehend 
was a great misiortune to the re iiblic under 
Which we live. I say, sir. I subscribe in a ue 
grte, and in a. strong degn e, loo to the d c 
trine laid down by that lam. nt'-d man, that the 
safety of the Kepiiblic wa* the supreme law. 
A war a ci v il war, a war tii t had ocen antici- 
patid bv no man, a war that i'; dhwrdly entered 
into human conception could possiblv occur, 
that di-s lived govennneut ami society, 'hat 
jiroduced confusion worse co founded, that no 
fore-igiit n.> human wisdom, could have c Icu- 
latfcd on, came upon us and then ir, became 
nectssary, in order to save the life of the Re- 
pulilic. to resort to measures tha'. were not 
written down m the constitudou and laws; in 



order to save the body, it became necssary to 
amputate a lin;b. When force whs necess:irily 
iiitioduced for the purpose of repilli g force, 
then I here came a dav when the exigency of 
th- hour mui-t dictate the me.isur.s to be 
adopted for security. But, sir, thes were the 
nee ssiiies "f war: one of tho e e.xtraor inary 
occasions that happen in the lifetime of one 
man not more than ooce. But. sir, i~ tne treat 
necessity of iht great trial of the Republic to 
be adduced on every occasion, and (obe brought 
intoevery trial dowever unimportant, howe. er 
petty, in times of peace, in times of the ad in- 
isiratii n of the law under ordii^ary .jurisdic- 
ti n? Are we to say to-dav, inter arma leges 
silent? If we are, 1 say I fold my arms and 
abandon this cause. Jf you, in jour retiie- 
n eiit, shall .-ay. here is a .State ne f'«,sity, here 
is a man that must be m d. a sacr Qce, ti is is 
impoit.int I or the preservation of the dignity of 
a branch of ihe Leg slature, then there is no 
further ' eed of appeal to constitution or to 
laws. We i.ave real b .oks in vain we have 
adduced authorities in vain, upon liie one side 
and t e other; we have been making a show, 
we have b en perf irming a moek farce bef re 
the eyes of the greatpunlic. bec.ii.se, at last, we 
are not to be goveriud by thos- books that have 
been re.. d, but becanse we are to be governed 
by the 'aw ■ f necessity. But, sir. if, on the 
coiitra-y, as I appreh nd wi 1 befonnd to be the 
truth, W'- ar.' to be g iverned, as in times before 
the w r as in times of peace, in times vv hen 
law and order pre \ ailed; if we are to he gov- 
er; ed by the written constitution and by ihe 
laws tiat have been enacted under it, whv Men, 
sir, I proceed most cheerfudy m tl e investiga- 
tion of matters which tiave been pie-ented ny 
theseat clesof im eachm nt. There .rethose, 
sir, evin in liaies of peace, in times of ordinary 
qui-'t, there are parties in every i epublic, there 
are parties wno act np >n passion, not upon 
judgment P i ty maiiness seems, somet mes, 
to scizi' upon both sides of aqu. stion, an \ every 
ihing but the ac omplishment oi an olyeet is 
' isrtgarded and ignoie . I don't r flee ^ upon 
one part> more than imothT I am, in the 
main, sir, h lever other men may think, i law 
abiding man, however others may choOse to 
com 11 e t HI on my cndu i. I had thoug it, sir, 
that he 1 iw was to be observed at every hazard. 
1 had ti ought that the. in ges ot the country 
Were the siieet-a- chor of the Repub ic. I had 
.houghi that my iriend who wil answer me, 
concurred in that opinion and that he then 
d d not hink, and I hope hc'ces not now think, 
M ith th. genrlemen in the pros cuti n who pre- 
ceded me that we have rogresed to a point 
v\here we re lo brush a-ide, as the tmipest 
carries the autumn leav> s, ti.o e ancii nt p inci- 
ples upcm which we once re-t d. and, in the 
name (d'progress. backed hy sophistries, backed 
by new exposi ions, th; t we are to merge this 
great repu "lie into ihe legislative dep a-t ent, 
cither in Congress or in the States of the Union. 
I r puoiate such progress 1 deny, sir, that we 
have adv need upon th ■ principles of our fath- 
ers. 1 still adhere, wi h my old dev tion, to he 
names of .leff. rson and VV'asliing on, of f;iay 
and Webster, of Marsha'l and horney th great 
expoundei sand admin stra ors of CO st inti.j al 
provisions and laws. But s r. in all nmes, and 
especial y i this time, when the mire and lilih 
of a d sperate war have h r ly been w.ished 
from the .lands of all, when iiloud nn i carnage 
are, at li ast. fre^h in our recollections, parties 
may assume, perhaps, a ma ignancy tliat will 
carrv us beyond those bou as, wnich, in ordi- 
nary times, parties have been all wi d to ap- 
proa h. 1 very eUort, legal or illegal is hrought 
to rear, with a view toacc-mpiish their pur- 
[lOS' so far as parties dare tiring the i; into op- 
e a ion i »ne party, in t e attempt to accom- 
pi sh Its p roose, resoits to n il eical mfasure, 
and forgi ts the exact and well-di lined bounda- 
ries of the law. Every man, sir, loo;s.6 upon an 



184 



object from his own stand-p^int. He does not 
conceive that to be evil which he doems to be 
necessary. Be anse tlie object is one which he 
deems highly desinible, he gets upon thi- boun- 
daries of law, and belore he is aware of it, he 
has srep.'Cd over tne line. When one party 
steps over the line, the other pany, forgeuing 
pe hiips, that it has been their own prnyo- 
king, irritaiing and illegal course tiat has in- 
citfd this r' bJllion, themselves also res-jrt, if 
necessary, to illegal means, and, perha s, with 
maiicts with bai feeling, les r to law to re- 
pel what is really illegal violence on the part 
of their opiioneiits. 8uch, I apprehend gentle- 
men, will be found to have been the result of 
the action oi parties in the State of Tennessee. 
I can well sc-e, sir, how either party may cnn- 
dtict themselves in the mid t of opposition, and 
try, lii ded by their dis ike cf opponents 
blinded by their love of success blmdeilby that 
feeling that exists in every heart more or less 
to su jeci other- to their own will. I sa. lean 
see how they m;iy have ex' eede th- right guar- 
anteed to hem in I he ca?e now before u^. This, 
fir. is not so extraordinary a case iis gentlemen 
Seem to apprehend. It is a case wliich flnds its 
analogy in almost every session of Congress, a 
ca^e whiih has found ilis analogy in the l.e--:is- 
bitures of the various St.tes of the Union 
There ts a d teimmation on the part of one 
party to adopt a measure, which is, by th m, 
deemed a measure of salvation, and by ihe other 
party a Measure of detraction Can we nut, 
ai this time of day, as refl. cting men, and as 
quiet citizens, see bowmen may excite ihetn 
se ves into the be ief that certain mea-mes are 
niea- u es without whicu the State may be lust 
or I he -tate may be saved, when really we lind 
that they are of mere temporary import-ince, 
or of ro importance at all? How was it in this 
case? One party thought, it was nece-sary that 
a constitutianid amendment propuseil bv Con- 
gress, i-hould be adopted, and adopted without 
delay, tliat . elay was equivalenf to ruin, at all 
events, that del.iy was dangerous in the highest 
degree 'Ihe other party, deeming the measure 
to be one of a highly disastrous t ndency to- 
war Is tiie interests of iheStategovernmenr. and 
of Ihe Uep'iblic, di emed that no mea-iire short, 
of actual violence, was not ' o be reported to that 
might accomiili^h its deleat. ?-uppo-e, insti ad 
of pasingihis constitutional am ndment, the 
3 egis ature had djourneu sine die, or ad gon. 
ho ne and should liave met .igain on the 5th of 
Movember, would the >tate have bi en rui ed? 
W"uld it have been lost? Congress satafter the 
5th oi November, and would it have refusird that 
which was dune on, o soon alter, that date be- 
ing the time to v\hichthe House of Assem ly 
stood adjourned? I ;!sk whether, in all calm- 
iie>s, and looting somewhat with the eye of 
statesman and a philo-opher on this question, 
however I maybe under the influence of pas- 
sion, unconsciously, on the one si> e ortiieoth r, 
there would have been a total destruction of the 
interests of the State? On the other side, I say 
if when the Legislature was called togi-ther, 
these refractory members, these absent mem- 
bers, if I hey were not lonkiug at it trom Lhis 
stand i>oint, but l0(diiiig at it as men look at 
these things in quiet times, a^* reflecting men 
look at thc-c things, if they had come lorward 
and 'li-charired their duty, (for I have no 'oubt 
of the power of the Govern r to call the Legis- 
lature together,) if th' y had come forwurd, and 
if I hey tiad though thit their duty retjuired 
tliem to resi?n, vacated their seat-, or had done 
what would have been better, c me lorward 
manfully, and taken their seats as members of 
the Legislature, they would haveiesciied the 
State But see h iw time corr' ct^ thesR t ings 
Here is one party in the Legislature, tint, deem- 
ing this, in their passion, in their excitement 
under ttie inlliiv nee of the spirit of the times, 
deeming their power such as I apprehend it was 
not, thinks it necessary to resort to forcible 



means, the other party sees no possibility of de- 
feating this measure but by a reso' t to what 
was illegal by relus ng to take their seats. 
Then what would have been the result? In 
Ave days after the strug'.;le took pla -e we had 
a quorum, an unquestionable quorum of the 
I'louse of KeoreNencativi s So much for what 
time would have done for these p'Ojile. They 
could not wait, they must have their will, the 
One party refusing to do its duty, the other 
party resorting to forcible measures In 
tinii-, this difficulty would have been corrpcted. 
If they had nor, been like ohiWren who must 
h ive their plaything, this might i ot h ve been 
the case, but tlien there was atiuie c ming, and 
that at no distant d ly, when this who e matter 
could have been decided by the regular meeting 
of the Legislature. Well, gentlemen, I h ive 
not made these remarks purposelessly. I ap- 
proach this as a legal question, and if I c ;nnot 
establish, as a b gal question, that this defend- 
dint is entitled to a discharge at your hands, 
I ask for no more. I say there is no spirit of 'te- 
fla ce. The gei.tleman who last adilresscd you 
o I behalf of th pros' cution, has thout:ht proper 
to re id from a speech of mine upon an incidental 
question, an argument that he ch tract'-riz"d. 
not in words, but in substance, as a defiance ot 
the Legislature, loth of the Senate and House 
of Representatives. I speak here on my respon- 
sibility a- counsellor the defendant. I speak 
boldly and flrmlv. I defy no body of men, I 
speak according to my sense of Juty, and if 
that he flefl.Hnce then I am to be charged with 
it. I am earnest. I seek success. J seek it be- 
cause, under the laws, I believe I am entit'ed 
to it. Wei, gentlemen, let us appoa-h the 
case now under consideration. Jud,e Frazior 
IS charged with high crimes and mi^d meauors 
as a judge, and he is brought hefoie you, as ttie 
sen:ite of Tennessee, on articles of impeach- 
ment. There jire two of these articles and I 
may have something to say in regard to the 
te ins in which they are introduced before you. 
But I lay down the propositions that I appre- 
hend are necessary to his conviction, before I 
call your atteuti >n to the forms in whn h these 
charg s are made In one oi these artic es of 
impeachment, be is charged with a high mis- 
demeanor. I suppose that that error crept iu 
from too closely copying the artic es of impeach- 
ment that wer.- exhibited on former occasions, 
uniier the o d constitution. He is charged witli 
an intent to do a thing that is not known to the 
law. He is charged with an intent to break up 
the T.cgisiature. He is charged with doing it 
miliciously, feloniously, and coriuply, will- 
fully and wrongtiilly If he is to be convicted, 
he must be charged in acordance with the 
powers that an' gianted to the House of Kepre- 
sentatives. Ii he h is i een,v,uilty of corruption, 
that rorruii'ion mu>t be set lorth. Ii he is 
charged with bribeiy. yoa must prove bribery; 
if he is charged with conspirac}', you must 
prove conspiracy, But you canno' say t; at le 
has decided a case between A and B, and merely 
use the general words corruptly and malicioiisli/, 
wlien no lelony is charged, wnen no aialice is 
eliarged. I kn 'W, mav it please the court, that 
the'se words feloniously, corruptly, an i mali- 
cious v are words of form, and so are other \\ ords 
frequently to be found m an indictment A 
partjMs charged in an indictment wiihactin"' 
under the instigation of the devil, and it would 
be h i.rd to prove that he acted under the insii- 
gat on of the devil, unless it be inferre<l a? a 
matter arising from the character o the act he 
has (lone. It is necessary that j on make out 
lirst. tliat he decided a case wrong, for it he de- 
ciik'd a case rigiit, then mdice and c imipiioa 
are not predicable of his decision. If he de- 
cided right, if he followed the law. I d'>n'i, care 
if he is actuated by the malice oi a flend. 
Still, if he d .'ciiled the case right, jouaiecut 
oft' from further inquiry. He could not be cor- 
rupt in deoiuing a case right. It he decided the 



185 



case wrong and it was a matter aliout vrliich 
Congress I'niglit difTcr, and lie decided contrary 
to wnat y'.uv opinion might 1)0, then Toumust 
prove corru|ition, you must show tliat it \va> 
not an error of judgment, but that bis deci-ion 
was raaile with a coi'rupt intent; and proof of 
corruption must be of thi' stronge-t character. 
If he decided the case wronij, and it was clciir 
as the uoon-day sun, as clear as that tvvo and 
two make tour, then you wouid be entitled to 
impute to him an impure motive. If a judge 
decides that two and tv\o m 'keflve, in hi--ollicial 
capaiity, he might be charged with being actu- 
ated I y improper motive. Aly duiy, as counsel, 
require me to ins'st. not only that the faits 
shou'd be estaldished, but that it should be 
pi'oved to be a crime. If I wee on trial before 
you, and it could be established against me, as a 
judge, that I had willfully, and knowingly, as 
between two partits before me decided ac;ise 
wrong, although j'ou might not find my motive, 
I would submit my case to you, and siiy, strike 
me fro 11 t!ie roll of judges." I am bouid to iii- 
sist. though, that there shall be something 
further; and that is, thar. the crime shall be es- 
tablished. I say here, to-iiay, that Judge Fra- 
zier bus done right, and that if he failed to do 
righ', it was an error of judgment. Well, now, 
gentlemen, let vis see in regard to this impeach- 
ment, whether it is not necessary that we 
should proceed with a little more form. 

The gentleraen have proceeded with these 
charges, looking at them in the lump, wittiout 
any security, without any discriuainaiing 
powers, and 'merely say that the chartres are 
sufflcieut. Let us "look a little Into what is 
necessary to be chart' ed, inid to how it is to be 
cliarged. t-ection 5281 of the Code provides 
thar, "The imprachment shall specify tuc 
oflenses charged with the same precision re- 
quired in an indictment; and the uccusud shall 
be a'lowed counsel as in cises of other prcsecu- 
tinn-." Now, sir I tiike up the articles of im- 
Ijeachment— you have all heard them read; you 
have aU perhaus, read them at your rojms; you 
are familiar with them, and I ask you as a 
lawyer, so many of yon as ai e lawyers, an ; as 
men of intelligence, who are not lawyers, 
whether Ihe charges of the articles of impeach 
ment, of a crime in his official capacity, are in 
accordance with these provisions of the Code. 
Why, sir, did we not hear, in the earlier stage 
of these proceedings, that thire v as a con 
spiracy to break up the gnvcrnmerit, and espe- 
cially to break up the branch of the Legisla- 
ture," and th;tt they expected to pr jve' that 
Judge F az er was apanicipatorin that crime? 
The gentlemen seem to have lost sight of i he 
connection lietween their proof and their alle- 
g.tlions. They talk of conspiracy, they address 
argU'.aents to Shis court upon the subjtct of 
consplrac. ; but when we look for a charge of 
that de-cripiion, as connected with Judge 
Frazie ■, and not in the proof, but in the articles 
of impeachraenr, we find no such i harge. 
[Counsel here read an extract from the char-e 
contained in the first .article of ihe impeaih- 
ment.] Now, I know that my friend, who is to 
conclude this case, h too able a prosecutur not 
to know that this is not a charge of conspiracy, 
Thcr'5 must bo an allegation n order that any 
proof of a cons|jiracy may be aaduced. His 
act is charged here as'beii g hi^ own, anl not in 
connection With members of the House ot llep- 
resentat/ves. He did rot know them, in fact 
he never saw them. Their names w 're not 
nieotioned. A general purpo>e was alle ed, in 
some part of the communiiy to break up tlie 
itouse. But m orner to establish a charge of 
conspiracy, it was absolutely necessary to state 
in the inaictment that he combined and con- 
spired with others for the purpose of breaking 
110 the House. You cannot maUe a conspirator 
of one man alone, there must be two at all 
events. 

Mr. Trimble. I wa-t to put this question. 

12 



We offered to prove that there was a genrral 
conspiracy, and that the motive was to break 
up t^ie Legislature. 

Mr. Ewmg. We ', now, gentlemen, I like to 
be catechised. I w^uld nniark here, ihat if 
any membi-r of the Senate leels any diJliculty 
in any pioposit on of lav, I would bo gUi'l tor 
him to ask me any qiu sion upon it, and if 1 1 ni 
ni)t abl • to answer it, I am willing to fall under 
it. I shall argue nothing but what I conceive 
to be the law a;d the truth of the case, and if 
we cannot stand upon the la'v and the truth of 
the case, I say. in the name of reason and of 
righteousness, let iis fall. Wt 11, now, the gen- 
tleman says that they W'v e atti-mpting to prove 
a C)n>piracy. and th it -ludge Frazier must 
necessarily have known of the existence of such 
a conspiracy. Now, 1 am merely insisting that 
ihey had omitted to chartce 'against Jutlge 
Fr.azier that he was a member ot that con- 
spirac ; and I say, that, unles they c'.artrehim 
as a number oi that conswiracy, in their im- 
peachment, they cannot introilnce tli' ir proof. 
I say that, without ch.irging here, in the in'iiiit- 
ment, that he was .guilty ot bribery and cor up- 
tiou and of conspiracy, they can introduce no 
proof of h;s guilt in these pat ticulars. I will 
here rea'l to the court section 4798 of the Code, 
"Any executive, legislative or judicial ollicer, 
wlio corruptly accepts, or agre s to accept, any 
gift or gratuity, or thing of value; or any 
piomise to make any gift, or do any act bene- 
licial to such oil'cer, un er an agreement, or 
with an uuders anding that his vote, opinion or 
ju gnient, is to be given in any particular m n- 
uer, or upon any pariicular sidt of any ques- 
tion or proceeding, which is, or may, by law, be 
brought before him in his official capacity, or 
that in such capacity he is to make any par- 
ticuhir appointment, shall, on conviction, I e 
punished by imprisonment in the penitentiary 
not less than ihree n r m -re th-^u tw>-ntv-one 
ye rs." Now, if persons had cocce to Judge 
Frazier and said here is a case in which oiir 
feelings are invo ved, and if you will dfcide 
this case in favor of Will ams, you shall be our 
G vernor, and he had yielded to it, tliat would 
have been a biihc. If they had oflered any con- 
sideration, and he had acted upon it, he might 
have been charged with bribery. If the judge 
Wticc to join in that conspiracy by s.iymg to one 
of the parlies, ' it you will indict, I will con- 
vi(^t " then he might be guilty as a particeps 
criminis io the case. One of the crimt s of which 
he might be convicted was subornation of iier- 
jury Bat Captain Heydt was imprisoned at 
the instance of Judge Frazier, but thure is 
nothing corrupt or criminal in that. I pros ose 
to make comments uiion this chaige, and to 
s^iow that he cannot be convicted of an attempt 
to break up the Legislature, in connection with 
a cons iracy. It i^ not pr ved that Judge 
i'razier had any connection with a conspiracy. 
I th nk they wili hardly go Si) far as to sa\ that 
he did haveany cunnectum with the conspiracy. 
They have attempted to infer, iruin thj fuct if 
the existence of ,■ conspirai'y, that Judge Frazier 
mu-t, OI necessity, have been connected with it. 
I have been endeavoring to prove that that in- 
ference is not warranted by the inoof, not war- 
ranted by the charges that have been brought 
against liim. Well, so much, then, m rcg.ird to 
the charge. Now, gentlemen, we come to that 
which w il perhaps interest you more, we come 
to that part ot the case in which we take issue 
with the gentlemen in regard to the decision of 
Judge Frazier upon the habeas corpus case. 
The iacts are all before you, and it is not neces- 
sary for me again to a tempt to detail them. 
They have been prestnted to you in proof, aud 
they have been presented to you by the counsid 
on the other side. Was Judge Frazier right i a 
the dec siou that he made? Is this dcliant, 
uentlemeu? Is this stretching beyoud me 
bounds of ligitimate argumeut for me to 
attempt to show that the defendant was right? 



186 



Why, the gentleman who addressed yon last 
for tne prosecution seem-Kl to consider it an 
ollense, an indignity, to t'e Legislature of Ten- 
nessee that we dare to come up at ttiis time o' 
diyandsay that Judge Frazier was right in 
thi'. decision that he mnde. But I say that he 
was right, and I thiili I shall I'e aiile to sliow 
this court that he was right. But thi rt- is one 
idea tlint strikes me here, to which 1 will give 
place: it is, that after all that has been said, 
after all the .ability that h:is been dis,>la\ed, 
after bringing all thac pile of bo ks up here, 
afti;r hiving read from most of them on tie 
part 01' the State, docs it not occur to you this i^ 
a question on the other side, as to whether two 
and two make five? Now, that is to be worked 
out at the enil of a speech of two and a half 
hours, at the end ot two other .speeches. I ask 
you, in all conscience, Avliether that is not the 
case as plain as that two and two make tour, 
jnid do not maUe live. If I wisiifd ro prove 
that two and two make four, I W'Uld take these 
r.wo books, and tiic>e two, and I would say 
there, there is the proof that two and two make 
four, and so simple wouM this ca-e be if it 
were not compicated with irrelevant inatt' v, 
and cumb red witli specious sophisms. But. 
on the contrary, it, seems we have been here 
spending an immense amount • f time and of 
labor on this question, and at last it must be a 
debateable question I know th it a great deal 
can be said on the other side, and I know that 
it would take pains and time to put out oi ihe 
way that which may be considered rnbhi-h ou 
th" otlter side. So much lor t lat. I think that 
what Judge Frazier did on that occas'on was 
legally right, and that, beii^g legally right, it 
was morally right as to him. Well, what lies 
at the foundation of this matter as to its be ng 
right or wrong'? We have to inquire into the 
ptJwers of the branch of a Legislature of a free 
Sta'e I am not going to contend for anything 
extreme liere. I know my old friend, with 
whom I used lo come inta co lisi m when I was 
defending criminals and he was jirosecuting 
them, has charged me with afl'ecing fairness 
with a view more efl'ectually to embarrass the 
minds of the jury. In all good nature, I mein, 
he used to ctiarge me WJth that But you have 
to .judge whether this is fl'ociation of f.urness 
or whether it is real fViirrcss. The powers of a 
branch of the Legisliture of a free State 1 
accord in the fullest, in tli« most ample degree, 
to a branch of the Legisl'ituie of Tennessee. I 
don't care to go back to the times of parlia- 
mentary usage, before Loi'd Coke wrote his 
institutes, and to impugn the action of the 
House of Commons, and thence to deduce that 
we are not governed by parliament ry usage. 
I certainly co: Id do so. The gent emen t;now 
that ever/ rivilege claim d for the House in 
tiio time of the Henrys and the Edwards is not 
a, privilege of this day. The gentleman who 
la t addressed you for the prosecution read to 
you some of tliese old precedems of parlia- 
mentary privilege and parliamentary usage, 
and if it were not ridiculous, I might occupy 
some of your time to show tiieir ahsuidity. if 
a mcml3er lost, his pi'opcrty, sometiniis they 
would stop all other business and take notce of 
that, sir W. Blackstoue was not a supp-^irter oi' 
liberty, but a supporter of tiower, and I laUe 
issue with the g«utlemau upon his remarks 
upon Blackstone's characer. But what was 
staled by Sir W. Blaci stone to be the privileges 
of parliament, are not at this day tueir privi- 
leges. LCounsel here read section 611 Ceshing.] 
Now, do they ask anylarget powers thLlnthe^e? 
Arc you not content with the powers laid 
down liere? I say it was a work of superero- 
gation on the part of the gentleman toi'itroduce 
any boots on this point. 'Ihe constitution pro- 
vides that thp House shall liave all the powers of 
a branch of the Legislature ola free State; that 
they shall have power to make rules for their 
own proceedings, that they shall have power to 



banish for disorderly conduct. They have 
power in my opinion, to compel the ai tendance 
of ab-ent members Do vou want more than 
that? I sa that ei her Ho'ise of the Legisla- 
ture of Tennessee, when duly constiruted and 
organized w ith a quorum ot the House, has the 
power to compel the attendance of absent oem- 
bers, and thi^ gentlemen were only misled, in 
egard to the cons itution, byCu hing's book on 
th it subject, by neniecting to loo and see what 
was meant by "eing duly constituted and diUy 
organized. Now, a branch of the Legislature 
is not restr'cted in regard to eompclling the 
at endance of its members. It is onlv le.-s than, 
a quorum that is restricted. The constitution 
say- that a quorutn cnii>isting ot two-thirds is 
competent to the transaction of business, and 
then it says that a less number than a quorum 
may be authorized bylaw to compe the attend- 
ance of absent memliers. But if there is a 
quorum, and the Sjeaker takes the chair and 
finds that tliere are a great many n. embers 
absent, I believi tliat the Hou-e has a right to 
make an ord^r, without a rule previously 
ad pted, to send lor its members, and ii they 
fail to attend, th n they have a right to arrest 
them, and to punish thein v\ hen they are 
brought before the House. Now, you have got 
as much as I apprehend you will yet. Ton will 
have to siop there we have accorded to you 
every thing that i < attempted to be proved liere. 
When the i oustitiition says that you h .ve the 
iiowers of a lu- mcli of a Legislature of a free 
State, then thev give you all the parliamentary 
powers that are laid down in the books, and 
more, perhaps, for I am in full accoid with the 
case decided in sixth Wheaton, in the case of 
Anderson v. Dunn. And I would not be so re- 
gardless of the Legislature of Tennessee as to 
contend that the branch of a Legislature of a 
tree State did not possess these rights. I am 
not going to assert here that a branch of tlie 
Legislature is not bound by the express words 
that are laid down M'i'h'regard to its aciion. 
Princip es have been estaijli hed, and upon 
these principles we are clothed as legis ators, 
with a certain amount of discretion. It is only 
lire abuse of that discretion tliat I oppose It is 
not a fair and legal exerci-e of oisiretion to 
which I am opposed, nor to which the judge was 
opposed. The ordinary laws of the land do not 
:ipply to the Legislature, but they aie governed 
by their own rules. We do not recognize 
fancied nee 'ssitii s in the Legislature any more 
than in a cotirt. We s;ty i hat if the constitu- 
tion does not provide that the Legislature shall 
meet, it can never meet, because it is a creature 
of the constituti n. Sujipse now, may it 
please your lioi ors, tliat nniler the coi st tution 
of 1S:14, the L-gi-luture had tittempted to come 
together, and sup;iose there had been relractory 
members, and tliat you had no (|uorum, what 
could you have dom ? You could not have done 
anything. It was suppo-ed 'y the makers of 
the constitution that the first Legi^lature 
would have no diUiculty in m enng, but if 
you will bear with me, gentlemen, I will say 
you have omitted, and the House oi liepre- 
scntatives liave omitted, to do their duty in 
passing a law under the eleventh set t on of 
the c nstitution, hj which this dtllicuUy could 
have been obviatecii. You ought t^ have i as-ed 
a law, and you ought to liave given the power 
of arresting absent members to a less number 
than a quorum. Conyress has piovided for this; 
fifteen members c^u exercise this power. lu 
the British House of Commons, forty members 
can exercise this power. 

Mr Trimble. Is that by law or rule? 

Mr. Ewing. By rule, and they are author- 
ized to nnike that rule. But the, "first Legisla- 
ture under the new constitution couhl never 
hive assembled if there had been refractory 
members enough to prevent a quorum. The 
next Legislature wa-^ in the same condition, 
and when the Legisli-.ture comes here again, 



187 



they will still be In the same conrliti'^n; the 
(lij^inite is in regaivl to the nn^ctinj; al'terwards. 
At your first meeting; in the absence of any 
law on the snbjC' t with ie>s than a quorum, 
you w 11 htve no power t) compel membfrs to 
come in, because it has been made the subject 
01 express piovision, thai it must be by taw. 
Now, then, wlnre was your fauoifd u cu^sity V 
It was the necessity ri>' bgnized by the c nstitu- 
tion oi ihe St.ite of TennesS' e. T' ey thought 
proper to risk tie meeting of the first Lesisia- 
ture, and that is all they tnoughi tht'j' dul risk 
They tliougbt that ilie second Legislature 
would bo amply proviiied for. But this is not 
done, yon are all at this day, w'tliout a law 
That Tiw should have been iiassed, there ought 
to be a law; but _\ ou cannot appeal to the ne- 
cetsity of the casfi "for the purpose of enlarging 
your pr>wers where the cunstiiution ha^ spoken. 
If the cons itution had lel't this to rules, then 
after you had got tO};et er, you might have 
made a rule that wonldhave been liinuiny: upon 
yonr ovn body. At the fir>t assembling of 
every Legislature there n ight be provision 
made by law. I don't 'are to lead any book on 
this suu ect. I care for no commeiita y. I ask 
for no decision. But what (io we m an hy laio 
in the connect'on here? Now, g iillemen, 1 
don't nean anv thiiifirofl'onsive, I don't mean to 
impose on your good sense in what I shall say 
ill regard to the \vortls, "by law." A"smalleV 
number than a quorum ma}' be authorized by 
late, to compel the attendance oi "absent mem- 
bers." There are laws o;' moral sense, there 
are laws of condiiot, there are laws of the uni- 
verse, th' re are laws of the spheres, but that is 
not w* at law means h' re Jt is the law of the 
Jand that is spoken of heie. It is a law that is 
to be passtd by the Legislature. A rule >>f the 
House is not a law of the land. Parliamentiry 
nsage is a part of the law oi the land, but a rule 
of the t)on-e is not a law of the land, except so 
far as it. is for the government oi the Hou.'^e it- 
seli, that made it. These gentlemen sav thtit 
this word law here may be very well hut tiiey 
also siy that in iMnuch as the constitution pro- 
vides that each Hous'^ may determine the rules 
of its proceedings, that this may be done by 
rule. Now let us see whether this cannot be 
brought to a reduatio ad absurdum, whi ther a 
rule of the Hou;e can be mude by which they 
can comptl the attendance of absent members 
with a less number than ;i. quorum. In my 
opinio I, that is to stultify the const't tion. in 
one section it is said that the. Legislature may 
be author!Z"d by law. in anoth -r sec ion it is 
said that the}' maj- establish rules for their pro- 
ceedings But where the constitution has 
sp'jken we are obliged to follow the cf>nsiitu 
tion; where it is sileut we appeal toparliament- 
arv law and us^ge. The old latin niaxim with 
which my friend is very familiar, expressio 
unius exclusio alteriun, certiinly ha- its lull 
bearing on this constitutional provision. If 
they hive expressed the (iriuciple that it re- 
quired the authorization of law to empower less 
than a quorum to do certain things, that f^rin 
of expression is the exclusion of everv other 
power and law to do this thing. This, 'then is 
no limi ation of the power of the Legisliture 
as a branch of the Legi-lature of a free >^tate. 
But why is the expies-i n used in the constitu- 
tion, "inav be authorized by 1 iw?" It is a deli 
cate matter to give that to a less number than a 
quorum. It is a very delicate m tter to give 
power to arrest an individual. It is not for 
every thing that a man can be arrested It is a 
provision of the constitution that no freemin 
sh.ill be deprived of his rights or his(privileges 
unless by the judgment o! his pi era, or of the 
law of the land. There must boa law of the 
land under which a man must be arrested, 
either the common law ur the statute law, or a 
constitutional provision. It wou.d seem that 
the makers of the const tution, when they re- 
garded the liberties of the people, reqilired 



them to besubmittpd to the law-making power. 
They chose to intikc special provi ion on the 
subject. The constitution only declares general 
principles, it does not enter into detui's Why, 
if a law were made, perhaps it would say that 
if fifteen or twenty, or forty raembeis of the 
Le.ijislature should meet together, thev c uld 
compel the atteddance of absent members, and 
could arrest those aliseni members if thev re- 
fused to attend. In the British House oi Com- 
moi s, forty niemb. rs may comptd the attend- 
ance of absent members; but then, m.iy it 
please ihe court, they say this has been author- 
ized bylaw. I musi cui fcss to an honest shame, 
may it phase the court in recurring t what 
they call a law, as made by the Legislature, 
previous to the occurrence ol this habeas c ir- 
pus . ase. I am sorry, Mr. Pre»ideut, I must 
say, to see the very respectable names that are 

attached to an ojii ion 

The htmr of one having arrived, the Court 
here adjourned. 



FRIDAY, MAY 31 ST, 1S37. 

Thp court met at the usual hour, the members 
being present, and the President iu the chair. 
The records having been read and approved, 
Mr. Ewing continued his argument as fol- 
lows: 

Mr. President and Gentlemen of the Court: 
I proceed wi h my argmrent at the point at 
wiiich 1 left off on }'es:erday. I said that I was 
somewhat ashame i to have to remove an objec- 
tion that had been made lo the action of Judge 
Frazier, upcm the ground that a law of the 
State of T. nne-si e had been enacted in purni- 
ance of the eleventh section of theseeonda ti- 
de of the coiistifcuti n which provides that a 
less number than a quorum may be antho; izecl 
by law o compel the attendance* of absent m m- 
bers. This was in ciuii eciion with the admitte'l 
powers, O! the House of the Legislature, which 
powers had been referred to and comm;,nted 
on. Of course, whatever maj- have been par- 
liamenta'-y us»ge, whatever may have iieen 
the existing laws tor the government of the 
Legislature at the time when the constitution 
was passe I, were to be regarded as annulled, 
if the constitution so spoke; or if a provisiin of 
the constitution was in conflict with the power 
that had been previously supposed to be!o g to 
a branch of the Legislature of a free Siati; It 
w.is said, however, in ai.svier to the coiistruc- 
ti.n of the gentleman who prec 'dvil me, tii: t a 
law had been passed, au<l that if a law had nut 
been passed, st 11 a law o' pariiaraentary iisuge 
existed, by which a House of the Legislature 
was authorized to make rules giving p )\\i}.r t > a 
less number than a quorum to compel the at- 
tend mce of nb-ent niembers. Now. I expose 
this ruse of the gentlemen on the other sirie 
more wi'havi wto -how the unfai-ness with 
which this argurm nt is pursued, than because 
I deem it in any degree ne es-ary to men as in- 
telligent as you, ortomte it as an argument. 
It is sa d that the provision in the constitut'oa 
is re-enacted by the Legislature. I hive no 
objection to that view of i necase. I am will in" 
to admit that the provision of the constitution 
has been re enacted by the Legislature. I 
know that this Code is one single statute of the 
S a e of Tennessc', as re-eracted by ihe Legis- 
lature. But the question is not, wi.eth' r tliis 
is part of the law duly enacted by the Leui-la- 
ture, but whether that law rontaii s anyarldi- 
tional provision to wlutt the constiti.tlon has 
alreidy provided, or whether it makes any 
provision of the constitutioa more obligatory 
by its ve-enactmcnc. Now, let us look at the 
absurdity of this proposition— I use the word in 
no offensive sense. Sections 145 and liC of the 
Code provides as follows : "The Senate a!;d 



188 



House of Represe'itatives, when as^embleii, 
shall each rhooso a Speaker, ainl its ot er olli 
<;urs, be judges of tlie qualiflcatiuns and elec- 
tions of It- memi)e,rs, and sit \njon its own ad- 
jaurnment fro n day to day. Two-thirds of each 
House ^halI constitutti a quorum 'o ^U> busi- 
ness; but a smaller number may a'joH'ii irom 
(lay today, and may l)e autiiirized bylaw to 
compel the attendance of absent members " 
'J'he ab-urdity of 'heir construition i- this, 
that one i egisliiure — [he Legislature of 1851— 
undertook to empower a futui'e Legislature to 
enact certain laws, "id you ever hear ot' sucii 
a pi-oposition? Tney say thut thi- is a law, and 
that it is a law growing out of ilifi constitution, 
and authorizing a less number than a quorum 
to compel the att 'ndauce c>f absejt mumbers. 
If that be a law, let ns .--ee what it d^claies. 
ItdeciMre- that a L- g slature may hav • power 
Co puss laws to Lompel the attendance of ab>ent 
members. I don't tliink ih.t my Iri nd who is 
to fol ow me, will insi->t that one Legislature 
has poNver to en;i(;t whutu tuture i.egislai.ure 
may do. And yet, thai is the effe t ot ttieir con- 
struction. If the con tiiutiou- makers say that 
tiie L'^gislatiire shall have power to authorize 
bylaw a less number than a quorum to com- 
pel the attendance of absent members, dues 
tha*^ require uuy aiiational force by the ne\t 
Legislature saying the same thing ? They don't 
ULdertaiie 10 do any.hing themselves, liutonly 
lodc'lare what the co.istitution has a'ready 
deciai'ed. Then this socms to b" vry litile 
bi tte • than a subii rfuge, an appeal ad! ignor- 
antian. I can make Udthiui'- bett;r of n, and I 
am sorry that any lawyer should say that this 
was the carrying out the const lutional pro- 
vision of the eleventh section of the secontl 
article. It is manifestly a mere lepetition, pur- 
porting, by 'ei'islative auihoiity, to give the 
same power that is given by the coustituti 'ii. 
Mr. Meigs and Mr. coo|i<-r. the authors of this 
Code, were most eminentlavvyers. Lverv pro- 
vision of the consiitutiou is to be found in the 
Code, ill the very worns in which it is cm 
tained in the constitution. Now, I as'i yon, 
gentlemen, when they came to stiy in the Code, 
thar, ''all legislative power shall be vested 
in tiie Senate and the Hiiu5e of Repr' senta- 
tive-i," whether they had added anything, or 
pased a law of any force, to give the Smate 
and House of liepiesentaiives any legislative 
authority? 'L'hey had merely reit' r ted, in a 
convenit nc form, ;ind coUecied together, all the 
provisions Oil the subject of the legislitive de 
partment, that are to be found in the constitu- 
tion. How is this Code diviiied? Why, sir, it 
is divided mto sections and articles, aniA under 
the head of legislative department, these pro- 
visions a e col ected, so ttiat we have, in con- 
nected form, under proper headings, ad the 
(Hiwers of the Legislature, without any view to 
give them adtlilional Ibrce. I am spending this 
much time upon this jioint, because an opinion 
has been givn to the Legislature, by tmee of 
the lights of the law, upon this subject. I may 
say here, in rej;ard to tlie nrgumeut of the gen- 
tlemen, eso lino dis-ce omnes - Irom one example 
learn all. If, upon your i etirement, you are not 
brought to consult the books, how are you to 
meet the argument of gentlemen upon such 
propositions as these? Weil, then, there is no 
law passed to carry this out. '1 he constitution 
says, they may be authorized by law to compel 
the attendance of absoi.t members. How many 
tire to be authorize i? Under wlia' penalties"? 
Under what measures? In what form? When 
the constuuton says, "may be authorized by 
law," the cons'ituiion means, that when the 
law comes, it will give direitions, specially and 
particularly, in regard to the manner in which 
a less number than a quorum shall he author- 
ized to compel the attendance of absent mem- 
bers. 

Having disposed of this point, I recur again 
to the constitution, and I ask whether there be 



any authority to give to a less number than a 
qiiortim power to compel the attendance of 
absent members. The c.msti ution says, 'may 
be authorized by law." Is there any pa lia- 
m ntary usage by which they are authorized? 
When t e constitution says, "they may be au- 
thorized by law, it obviously means, by law to 
be enacted hereafter. They are not now author- 
ized by liw. The plain meaning of the words 
is, that the action is to be future. They do not 
possess, by parliament iry usage o-- oilie wise, 
a right to delegate to a less number than a 
quorum, the power to compel the attendance of 
absent members. But, it is insisted, thit the 
provision in the constitution itseif, without ihe 
e'lMCtment oi any law, by its own fore •, or, as 
we lawyers say, propria vigore, anrhorzes a 
1 ss number than a quorum to compel the at- 
tendance of absent members. N'>w, may it 
please the c<urt, if this were to operate by its 
own force, that fac; would I e certainly indi- 
cated in terms quite different troin those actu- 
ally einployei). In ordc'- to c>nvey the idea 
that gentlemen impute to this clause, it W'Ulil 
have to be revised thus : " tiiat a less number 
than a quotum are authorized to compel the 
attendance of absent members ; not th.it they 
may be, bit that they are; t en theqi.eston 
might arise in r< gtird to tiie neces ity ot a pas- 
sage of a law. In that case, \\\\ opinion is, that 
tlie constitution would opertite by iis own force, 
without the passage of any law at all. Some 
lawyers have argued, that none of the provi- 
sions cf the constitution operate by their own 
force, as law; and that Ihws ha\eto beps-ed 
in pursuance of the constitution. But the con- 
stittiiion says, may be authorized by law— cou- 
tradistiuiiuished trom the constitution, contia- 
ilistingiiished fiom rules. Then, it is necessary, 
that somuihing more should be done My co- 
adjutor. Judge Gaut, iitrodiiced the cusc of 
Crutchfield vs. The State, where was argued 
the meaning ot that < Lmse of the constitution, 
which provides that the State may be sued un- 
der a law, as the law mav thereaiter direct. 
Thdi, the Suiiri me Court of the state said that 
the coiibtitution did not operate by it.~, own 
forre. but operated alone by the form of a law. 
'I his is precisely analagous to the case now be- 
fore us. A law providing for tuii;g the State, 
must provide the meuns by whiJi the State 
may be ^ued, and direct in what court the suit 
maybe brought. Jt is true, the Stale cannot 
now be sued;' that law is repealed. I b' lieve 
that some of you gentlemen were members of 
the Senute taut repealed that law. Then, if 
that law is repea'ed, is the constitution still 
operative? Suppose, now, that a biw hid 
been piissed in pur.suance of this provision of 
the constitution, and that that l;iw had been 
repealed, you would not have supposed tlitit 
you were enacting a mere nullity upon your 
Statute book. So. ihen, I think it is plain, be- 
yond argument, that the constitution does not 
operate liy its own force, to authorize a less 
number than a quorum to compel the a ten l- 
ance of absent memuei s. Then Mr. Presiilent, 
what a.re my views in regard to the n anner iu 
whirh a less number than a quorum can be au- 
thorized to compel the attendance of absent 
memtiers? I propose, first, to state the whole 
case, ami then to lortiiy my posi'ion by the 
auttiority ttiat has been saiict oned by loth 
sides in this argument. If i seem to I e wast- 
ing time in i-iscussing the manner in which a 
Legislature mav C'lnp 1 the attendaece of ab- 
sent members, I appr. hen t ii will be found that 
I am notdjing so, when the whole question in 
thi- case, as to whether Judge frazier decided 
right or wrong, depends upon the quisiinn, 
whether a less number than a quorum ol the 
House has the power to compel the attendance 
of ahs nt members. When the Legisia'ure are 
electefl, they come together without any lu es. 
But, iu Kngland, there are standing onkrs 
Irom one parliament to another. In this couu- 



189 



try. we have no standing' orders, and when a 
lejri«l itive assembly nii-ets, it is wiiliotii. any 
rules lor i's g vernment. It is not possible for 
one Iciisl itire assemiily to mike rule-- lor the 
government of its successor. Tlie?e rules have 
to lie iidojiied by legislative assemblies aftsr 
they are in s ssion But one Ic-tisla'ive ass' m 
lily mny begoverneil by or-e rule throughout 
its -• ssion : it may be so," but it is nor necessar- 
ily so, and it does no' follow unl' s^ by a pruvi- 
sb; in the rules t'em^elves. I am gong to 
sustain tliese assertions i)y authorily, 0. fore 1 
am lioni-. Then when a legislature uie ts in 
ss'ssiou, either at a cal ed se»si(in or at a sul)>e- 
quent ses-ion, unless iheic rules have I'een 
adopte 1 by an express provision of the I egisla- 
ture;it a "previous session, they have literally 
no r;ile.s at nil. Then, when tli'' I/'gil::turc 
nietbyaeall of the Governor, not bv its own 
adj'iurnmenfc, but under a ca'l, it was a new 
si'ssion, it wa- not a part of the od session. 1 
th;nk that the Governor had a i ight to call them 
togetlier. I can supixi-c many oases in which 
it would be import iit for the Govern ir to call 
the Leyisiature togeth' r. Suppose there i ai! 
be.-n in-.a-ion ; suppose there had lieen sudden 
Vf\r: suppose tViat any otner of rho-e contin- 
{.•cncies tliat hippen in luimau alf.irs had oc- 
eui'red, ! have no'objection to sayinsr, that, im- 
dr su li ■ircumstance-. he might haxecaleil 
the L gislat av^ together. . e may hi e 
cousideied there was a viob nt necessity 
tor riiliing the legila'uie together. Th^^ 
Governor Is not restri ted as to the time; 
but whe'i he does call the Legislatu' e tigethe'-, 
it is a new s sion; there 1= no r le under wliich 
it cm lie gov'-rned at all. In C''>n,<jrr. s < there i> 
one rule thathas be n repeated un il its< em-, to 
h;^ve become a st.mding order. In the Parlia- 
meni of Great Br ta n m similar ruie has become 
a Stan ing order, and that is that ror.y mtm- 
bei'S may compc 1 the attendance of absent mera- 
l^ers. in Congress, thi' rule i<. that fittten 
members can move a call or the House, and 
may co npil the attindance (if other mem' ers 
This is the near- st thing lo a standing order 
t'iat exists in Congrtss. Tlnu I laydo..n the 
])o-ition tha' a l^egislatuic assembling at its 
lirst se3^ion his no rules for its .ijovernmeL t. 
If a law had been pr^iie dy passed, a less num- 
ber than a quorum could com pi the atiOnd- 
imceofthe members. Tliis luie in regard to 
compelling the att ndance of membirs, appli s 
through lilt' who e time or' th ■ ses-ion ol the 
l^igislature. li' no law has been passed, the 
members have to get together the be.?t manner 
they can, and then tiiey nny adnpt a rule 
Jsow, this rule is opeiativeduringa 1 the >ession 
ot the Legislature, but the rule expires Iron 
time to time, as the LejiisUture gnes out. Now, 
tlien, when the Congress of the United St ites 
asse ! bles, its Uni business is to adopt a rule. 
Congress, having then adopted its rule, that fil- 
teen mt miners may compel Che attendance of ab- 
sent mem ■ ers, alter Miat time, they may be com - 
pelU'd to attend. To illustr..te, to-day you are 
constituted as a House, to-moirow you f il to 
have a quorum. To day you are iully organ- 
ized with a quorum to do business. Tomor- 
row, I say. you fail to have a quorum, then 
comes in tlielaw which s.iys that aless number 
may compel the aftendanc'^ O' absent mem Ijers 
You execute that law. In ten (iays you are 
without a qiiorum. You execute s'our l:iw 
again, you are not organize 1 lor business, for 
theri is !■ S' than a quorum, but you my pio 
c< el to compel, undi r this law, ilie att- ndatn e 
of memb'is Now, the crowning, capital mi - 
take that was made by Mr. ]Ma\ iiard— I call him 
byniineas more convenient— in reg-^rd to the 
power of a less number than a iiuorum to com- 
p. 1 ihe attendance oi memoers, Mas foiunled 
upon reading one section from Mr. dishing' ~ 
work without referring to the other Siiction, 
which bears upon the, same qufSiion. tie said 
that when an asseaibly was first constituted 



and organized, a l^ss number than a quortim 
cnuld then compel the attendance of absent 
member-, it do s not read so on its face, al- 
though on miiilit be misle 1 into sucii an idea 
if he did not recur lo fither sections. |Mi-. Kw- 
ing here read se lio s 20-'^ am* 2(U of Cusning ] 
IJut 1 asii you wheth. r you be duly organized 
u: less you have two thiriis of each iiouse i.res- 
ent? Are you organized to do business, unless 
Tou have a quorum of two-thirds? Ihiques- 
tioiiably not Bui. \\hen \o-,, have a quorum to 
do bu-iness, you ha^ e aright also to en orce the 
attendance of all yuur meinb. rs. Wlienever 
you have a House duly consti uted and authnr- 
ized, then you may i roceed lo eniorce the at- 
tendance of absent meni'-ers. [Mr. Kwing here 
read section 2i:8 of Cu>h'iig.] s.i it is in r- gard 
to the House of I arl; anient, Mhere the ru e au- 
thorize- a less number ihan a quorum to compel 
ihe attemlance of absent mcmbeis. Now, E 
wish io sustain the po-ition I have here taken, 
by author. ty, an auihonty drawn from this 
b-.iok, (Cus' ing's.) [Mi-, hwin^' heie read sec- • 
tion 3G9, Gushing. ]i Jf they ha^e a rule autnnr- 
ized oy the constitution, they can proceeo under 
that rule to con:pel the atiendance of members. 
If they h.ivi no rule, but a law, they can pro- 
ceed und r that law, an I ihat is all t.'e\ can do. 
Immediafely they lind themselv s without a 
quorum, busine5s"^is to be susfiei'did, an I thev 
nui>t proceed under their lules I say, tlieii, • 
that this section 2(;4. instead of teing constri ed 
upon its face, ought to lie construed {mm other 
sections; il nor, ii would be in p ain contradic- 
tion to the elevt nth sec ion of the second artcle 
of the constitution of Tenn ssee. ihe Legisla- 
inre must, ai all times, ha,ve a quoni of two- 
thiriis m order to iransacc any busine>s or to 
com(.jei the attendance of raembeis, exci'pt a 
less uiiraher i- authoi-zed by law. Now, sup- 
pose I were to concede to the gentlemen, that; 
the House, Aviien duu constituted, mu-t make 
a rule in the Stateof Tei nessee, or anywhere 
else; or must, without rule, proce.d to enfoice 
the atle^nlance ol its m mbi^rsbv les- than a 
q;iorum. I say, suppose I were to concede .h->.t 
thev were to delegate that pow er to a less num- 
ber than a quorum, what would he the conse- 
quence? If the House can deleg.ite the power 
to a 1. ss number than a quo'um, to compei the 
attendance of wb^ei tmei tiers, what is co hin- 
der the House ir-m authorizing a les.> nun.ber 
than a quorum to pr cee i to bu-iness? It is 
said tliat the Hou-e h s an inh- rent power to 
delega'e this, although the con-tiiution says it 
must bedouf b.y law, and Ihat it is an in^ erent 
power o the House todelegate to a le<s numljer 
than a quoj urn the p lu er to c um el the attend- 
ance of absent members. If it be so, tlien the 
House may, i-y the same authority, delejate to 
a less number th .n a quorum the pow. r to tn- 
act laws. But whenever you go beyond ad- 
journing from day to da\, yon have gott> a 
point where you leave the auth.'r.ty ol the 
House to a b ss numlier than a quoiuiii, to bare 
simple arbitrary discretion. >t hat rule lias 
been ado|>ted on this subject? C-jngi-ess sa.s 
ihat tlf eeu shall constitute .i qu'runi'. Parlia- 
ment -ay- hat forty shall constitute a quorum 
for a certain purpose, tiu.t is, to compel the at,- 
t ndance of absent members. But wlia prin- 
eipe has been fix d upon there? There is no 
rule and no liw, and w- are wiihoit any rub; 
lor our government in tiie prtmisis at ad. 
Well, geiitlemen, I proceed now to establish the 
pos tion I have taken, by autho'ity, wliicli I 
am very ^;Iad has been so II or "U^hly enoorsed 
iiy our opponent-.. We aie coi tent with every 
thing that has been wriit n in thi, book (CusU 
iiig ; Mr. Trimble yesteriay disapp'ovd one 
of its sections because Congress he said, was a 
higher authority th .n Mr. Cus. ing, and hadde- « 
citled a point against what w:-s exores.-ei on ' 
the face of tliat section. But if he can male 
any thins: out of that de'isioii of Congress, why 
he is welcome to it. We will have to discuss 



190 



Unit and I think that before he wiU be able to 
make it of any avail, that, as tlie old warrior 
said, tlifre will be -'raanv a linighc from >addle 
borne." Ithirk he will fin I it a very diiliciiU 
matter to make it appliculile to the case now 
before the court. Let us proceed, then, in an 
ordeily wav to read cern in sections Irom this 
book. [Uo'insel hei-eri-ad 'roaiCushing's work. 
soction> '247, '249 S.55. 25T and 261 ] Now, let us 
turn U) th'- co- stitution of tiie State of Tennis- 
see w ioh says that tlie legislative authoucy ot 
th s State sh.i'l be vested in a Geneia Assem- 
bly, wh ch shall consist of a House of Repre- 
sentatives and so forth. Now. wdl the gentle- 
man I urn to that provision, and see if it is not 
provided in the constitution of the Unit> d 
Sta es that tw -thirds of ihosc chosen siiall 
coiistituie a quorum. That is what Mr. Val- 
landifham, Copperhead as he is, con- 
tended for. Mr Gushing lays down 
the propisitiou that a qnorum coisists of two- 
thirds of the menibi:r>(hos-n. But, ijentleuieii, 
I doii't wish lo be unf.ur to the Con.re-s of the 
United ntates iu regard to^ts decision. They 
may have decided right in this ease, or they 
may have decided wit.ug. I assume that they 
have decideil right, i-,ertainly they have decided 
right fir the government of tUeir own body, 
and I think, under ;dl the circumstances, they 
did decde right, even if there had beenn > pro 
vidoii in the con-iiitution ui the United iitates 
Su h cases may arise, I admit, in t.mes when 
confusion reigns, when war ragt-s, when no 
appea can be made but to arms, to tiie canmm, 
anit t > the bayonet, there are times when 
nece-sitv must rule. Here were eleven Statrs 
inj-ebcllion, here w i the Congress of the United 
States to enforce its Jaws and carry out its 
measures for the suppres-ion of the rebellion. 
And if they could not act without leavi g out 
the se'iedinj; States, they wou d have been pow- 
erUss. I say they wi-ie not required to regard 
thtni in miking a quorum or lu amending the 
CO .stituiiun at that lime as St .tts, because ot 
the ar»so uts- ne e sity of the caie. But neces- 
sity must yield as a rule wheneser the occasion 
ol "tliat necessity has parsed away, jjut ne es- 
sity may soinetmes ov. rnde i:vpry existing 
provision that human loresight can have made 
for ilie governm nt of man. This was a time 
when til y had lo resort to some inoan^ by 
■wU c;. they could enact laws und adoiit means 
f(ir the supiivession of the rebellion, but 1 don't 
need ti> re>oro to tli.d, be 'anse here is a pro- 
vision on the lact" of the constitution. Now. 
Mr Ma»naid said he did not know aijy law 
that was passed by whi h thtre was an appor- 
tiDunicnt of the State b}- which it would nece.-- 
saril/ appoar that thre were eigiity-four 
menibers. He may have oveiluoked i;hat pro- 
vision, but the Code claims the iippurtioninent 
It may have been altered, but if not, it still 
remains the apportoninent. There were seven- 
ty-live distric.s in the State of lennessee 
aui iiorized lo elect members to the Legislature, 
nine were added at thi: time the schedule to 'lie 
consliiution was adopted and the schedule bus 
been di-clared by tie Siiprene Court to be a 
pait of the constitutim of the State, so far a,- 
its i/iovisions are of a co- s tutio al cliarai ler. 
Nine and sevt-nty-uve make eighry-four. Mr. 
Cu-.i.ing l;iy- djwn the proposition, that out of 
eigi t,-four, there initst be such an aliquot part 
a.s tlie coiistitut on provides. Tlie constitution 
provides that there -hall be two-thirds. Mr. 
Ctishing says that wheievei' that pioasiou is 
made, \ou liive n. thing to do but to c-.unt the 
members of the House and to set wlif ther there 
is a quorum. In this case, eighry-iour members 
weie authoilzed to be elecied.'and a quo um 
rtquiiedlifty-si.'c. N iw. Mr Pie^ident I think 
I h VI! maim diied the position I took, that ihis 
precedent in Congress was not a precedent iiy 
whiih we weie to ue governed, and iliat, Ih- 
autliO' iiy of the St te of Tennessee lemains in 
full for>.e. Mr. Mayuard asks how do we know 



there was not a quorum, and how do we know 
there were not [wo-'hir!s oi all those e'ected 
present. I don't care how many were ele< ted, 
that is not the question. It is how many were 
enti'led to be elecieil, as laid down in the sche- 
dide to the consiitution. But I was proceeding 
further to show ihat there was a necessity tor a 
rule or a law, and thaf no rule or a law had 
been estahlishi'd on lht> subject. [Counsel here 
read sections 490 and 498 from Cushing.l Bu^ 
gentlemen, this Legis'ature met without rules, 
and I think .Jud;;e JFraz er was fully autiior zed 
to sav that he did not know of any law existing 
on the Statute books of I ennessee authoi izing 
the arrest of abent members ot the Legislature 
by a less number than a quorum of that body. 
I say the facts of the case fully authorize this 
stateme t, although he has been taunted and 
insulted with the charge of gross ignorance and 
stupidity, such as oug^'t to authorize his re- 
moval. I say he has been taunted with not 
knowing that there was a rule iu retiard to this 
mat: er, which i ule I think I can show had no 
exi?tence as to that assembly. There was a 
rule in 1835 and 852, and every House has had 
is rules. I tno-t che rfully "admit that in the 
main they have been adopted Ir. m one fegisla- 
ture to another But whenever the Legislature 
is ilissolved, their rules ai'e at an end. But, 
Mr Prcsid'nt, suppose his rule were in force, 
what is the rule? I don't intend that the gen- 
tleman snail escape under any cloud of mystery 
in regard to thi- matter. This rule his not been 
discussed. Was it thislfam >us rule No. 14, under 
which they intend to act'? Now, understand 
attain, that without a law or a rule, they do not 
pretend there was any authority for the arrest 
of these members I think I have shown there 
was no rule. But if this rule, that they say 
was a rule of the House, was in force, then to 
what does it ext-nd? This rule does not under- 
take to authorize the arrest of members. The 
first General Assembly that met unrer the new 
constitution adopted a rule s'mi'ar to this: 
"So memb.-r sh ill absent him-elf from the 
service of ihe House without leave first ob- 
tained; and in case a le-s number than a 
quorum of the House shad convene, they are 
hereby authoiized to send the Doorkeeper, ov 
any other iieron or persons, for any or all 
alisent members, as the majority of such mem- 
bers piesent shall agree, at the expense of such 
members resijectively, unless such excuse for 
non-attendance shall be made, as the House, 
when a qu rum is convened, shall judge sufli- 
cient " This rule sa\s th a no member shall 
be absent without leave. I scarcely want to 
take up your time, tint I want to know how 
VVilliams could ha^e obtained leave. 

Mr. Trimble. He ought to have been there. 

Mr. Ewing proceeded. I say he ouiiht to 
have been there as hi< duty, but whether he 
was an alisent mem'er or not, is another 
question. It is a question whether he was an 
abssnt meiniier wiih>uc leave, at a time when 
it was impossible to obtain leave, because there 
was no power to give him leave. Le-s than a 
quorum could not give hiin leave. Now, if the 
word "send," in thi^ rule, is to be con-trued 
arrest, we shall h we to get a new Law 1 ic- 
tionary, wo shad hive to get a new exposition 
of law. -To send the Uiorkecper" i- to send 
trie Sers:eaiit-at-Arms as the jiioper olli.er 'or 
the purpose of arresting a member. 1 aoinit 
the power of the .xsstmbly, when duly consti- 
tu'ed, to enforce the at tendance of its n.eniiiers. 
1 deny their power to delegate that authority 
to ane-t a member. They have not assumed 
the power to delegate that authority ti> arrest a 
m inbur, but merely to send after him the Door- 
keeper, and to notify him that lie ought to 
attend. And if thev send the Doorkeeper after 
him, and he fails "to atiend, why, then, being 
alisent w thout leave, when th'j House is duly 
con-tituted, thev may try him as for contem(.>t. 
1 hat is their authority, if iliey have a quorum. 



191 



they may send for him. If he refuses to come, 
and if thev chose to take action upon it, they 
may try him fm- his conducr., I)iit ihey have no 
power to arre>t him. They have cho>.en their 
owu words, Hud they have chosen them wlh 
discretion. They chose them, heau-e under 
th eonstitu ion "thev had o power to choose any 
stronjror works. That is the cU'ect, ttien of 
iheir rule, when we come to examine it. Well, 
suppose they had undertalien a further autlio- 
ritv, and unilertaken lo am st a memi^er by the 
rule of the House, that would have been an 
attempt to exercise a poj ei- tliey did not pos- 
sess Now, Mr President, I muyri ttermysef, 
hut it seems lo me I have made out that tiere 
was no quorum in attendance, and tliit 1 ss 
than a quorum have no power t' compel the 
atienilance of members. | »i '. Ewina: htre roa I 
sections 2T0 and 280 of the Cnde | What do they 
iray in answer lo tliaf? They say thit th se 
members were not under restrai'i^t, that they 
were allowed to participate, if they thougat 
proper, in the pruoe' ding> of the House, but 
they were u der arrest and ordered Id o a room. 
Kow, in tiie tirst phice, is that room within the 
havoi the HouseV If the door is shut, it is not 
within the bur of the House. I suppo>e that if 
a member were outside ot the bar of the H luse, 
that is, outsiile of thi' rule, I'e woulii be within 
the bar of the House, b-eause t'e memi ers 
might ;dlow him to vote. Bu , in fact, these 
committi'e rooms are no part of the bar of the 
JHonse, and if the recu-ant 'i.emiiers Wrre there 
umer restraint, it would be the same. When 
their cases were disposed of, di ' mt Mr. Nor- 
man introduce a resolution to have them dis- 
charged, and was not that resolution ig ored? 
Was there not a resolution passed i>n the IT li 
of the month, ia which it was sud the}' were 
not dis'diarged and could not be discharged? 
Judge Frazier acted upon whar. the Hou-e said 
to him. but were not these mi mbers under re- 
straint at tlie very time the resolution wa-i 
adoptel? Were they not under restr^dnt when 
this habeas corpus was 'Ssu (1? A d were they 
not liepf under tliat re t aiu" untU they were 
dlive fd bv the a -.liKn ol tli • ^heriffof David- 
son county? Werethey notc-mtined here up.der 
arrest on the evening of the 19tli, after the 
adoption of the Constitutional Amendment? 
The n.emlieis of trie Hon e snil to tliem ''vou 
may vote if you will, but you arte still under 
the charge of Capt. Heydt; jou are still to 
be liept there, although this Constitutional 
Amendoietit is pas-eii." Was thee any change 
in their position? imquestionably not. Then, 
even at the very last, ou the evening of thi' 19th, 
they were -till under ari'esi, andtheir arr st 
was t'( continue nuti the farther ord' r o( the 
House. Mr Norman imroduced a I'esolution to 
have thi.'in discliarged, but that was relu^ed. 
then they were still iin ev r'Straint. But 
Judge t'razii r was told by your sworn officer, 
the rterge lut ut Arms, that t ese men were 
under restraint Ihere was no quorum wth- 
out them If they had been re eased from re- 
straiiit. how could Judge Frazier have taken 
juilicial notice of it? You said nothinir to 
inform him. If you had sent word to .ludge 
Fr, zii-r that you harl releised them, in "a 
moment thecasd would have droijue-l frnm his 
hands, and there would hive been »n end of 
it. Bat Judge Fraziwr cannot stay in the House 
of Kepreseniativ; s, he c muot see wlien mem 
bersslip m and slip out, lii is not hound to taue 
ju .iciai notice f the journals of the Hou-e of 
ilie lo.mation of a quo;um. He cannot do it. 
In the nature of things, it is t t<illy impossi- 
ble to take judicial notice of that m dter. Your 
quorums ari- changed from moment t > moment 
and there may be a quorum lo-day an i no 
quorum to-morrow; and whenever you are 
foui d without a quorum, then you are to s op. 
This, then, is the podiion of "aHaiis. W hi-u 
there was no quorum pn sent, when there were 
but fifty members in fact, Juolge Frazier issued 



his writ of habeas corpus. It w.as not claimed 
be ore Judce Frazier that there was a iiuorum, 
and he procti-<led ihcn to render his judg- 
ment. The ton.-titiit onal Aniendnieut was 
j)assed in the morning, and these pri-oners 
were or ler d to be released in the evining of 
the same da . If the object oi their arrest 
was to pass the ( onstituional Amendment, 
that had b en done, and they were retained 
for punishment tin y v\ere still under restraint, 
so ihat in any jio-sible view ihat can betaken 
o' tins matter, there wi\s no quorum. Judge 
Frazier was not notilied tliat there was a, 
quorum. There was no power on ihe part of 
the Li gislature to compel the idtendance of 
absfint me-' bers in tins case. The memliers 
were ar.ested by the wnrnm' ot the Sjieulier. 
We say that w.irr uit wa> without authority. 
We say ihaf resolution was without author ty, 
and that neither a rule nor a law .'utiiorized 
lis adopt, on, or authorized the i-siiance of ihe 
wan ant. The Speai;er does not i-sue a war- 
rant, but he issues a paper which does not piir- 
jiort to come from a brandi of tlie Asseinblj', 
but only purports to be or .ered by the mera- 
beis present. Now, this is no Speaker's war- 
rant; it w ould have been no Speaker's warrant 
under tlie parliamentary usage w liich prevails 
in the Hou5e of Commons, but it is a paper in 
which the ^pealier exacts what lie liad been 
directed by an author. ty wdiich wts not com- 
petent to give direciions for an arrest. Jn this 
state of the case, an ap li ation is made to 
•Judge Fraz er to grat.t a writ ol habeas corpus. 
Had he authorit> to grant it? Section 3720 of 
the Code sajs: "Any person imprisoned or re- 
s rained of his liberty, u dei- any pjeteiise 
whal>oever. except in cas( s specific ; in the 
next se tioii, may proseciite a writ of habeas 
(orpus to inquire i to the causes of such im- 
uris nmtut and restraint " Suppose that a 
petition were presenied to a jiultrc, ami the 
statement upon tie face of the ijetiion was, 
that the party was illegally held in custody 
by a court that pretended tn have the authority 
ol' a court of the Untied States, but that ^^as 
in reality not a court of the Uniied St^ites. 
Suppose the carcy had sw-rn to the petition, 
what could the judge hudi to? Tlie party 
shows the paper upon whieh he is couhned: 
he presents it vvitli his pet tioii, and he says 
h=re IS a paper tiiat purj orts to have been 
issued by tne authority of the United Stites, 
but the paper is a forg"ery, it is iiot by au- 
thority ot tne United States. Suppose that is 
sw 'rn to, then the judge would have been 
bound to < ut rtain it. But if it turue 1 out on 
investigation that it was by a legal order of 
a couit of the United .-tate, the mn vv U'd 
not be entitled to his discharge. So it might 
be in r-ga^d to the auiliority of any otlier 
c urt ir a court commit for contempt, and 
that appear upon tile lat.e of the jietition, then 
Che jud-e is hound to r, ject the peiiti n. There 
is no oiscreaon in rej-'it'd to this matter, it is a 
positive and absolute duty. It a peutiou be pre- 
sented wh ch. upon its tace, sli ws tliat a party 
is not eniiiled to re.ief, tlieu a judge is toun 1 to 
.efnseir. Tnis is clear y seen by lel'erence to 
section 3726of the Cod, wii ch provides that, "'If, 
from the showing of the petitioner, the plain- 
tiff W"Uld no. be e .titleu to any rede , the 
writ may be refused; the reasons fir such re- 
fus 1 beiig briefly inilorsed upon the petii ion, 
or appended hereto." If it le shown to the 
jud.ge that this is a form without sub-tance, 
ihat it is not a legal SpvalJer's wariam; that 
the I evolution is not a resolution of the He. use 
of Kepresentatives ; that ii ere is tin unauthor- 
ized atsuniuiion of authnrit\ ; then the judge 
is bound to grant thewiit. That is what was 
:illeged in this cise. To be sure, ihe person 
who presented this app'ication, sa\s, "'by some 
sort of pro lamation of the Governor." If I 
had drawn that petition, or, it many another 
lawyer had drawn it, there ni ght have been no 



192 



flinar at the prochimation of the Governor. My 
opiiiiou is, that tlie Governor had the right to 
convene the Assembly, but it was 'he opinion 
of many otiiers that he had no rij^ht. Tlie law- 
yei', who drew this petiti )n, thonghr, he hal 
no right; but ihat was of no importance; that 
qui'Stiou was not regarded by the judge wlio 
granted this pe'ition. It was stated by the 
petition, that t lere was no quorum present to 
pass that rH>iolution. What is t le S eaker's 
Avarrant, without being b uiljed by the author- 
ity of the Hou^e? C in tlie Speaker fro about 
• the streets and S'iue his wari ant for any raai, 
a member of the Legi'-liture, or anj' other per- 
s iti, ior contempt, unles> he is anthorizid tiy 
the House to do so? Ic must come from the :m'- 
thoritv of the House; that is what sustain* it; 
and when it is without the :uuh''>rity of the 
ilouse, it is not sust lined at all If the House 
has not acted— and it is alleged in the petition 
tnat th'y had not acted — ihen the p tition is 
obliged to be granted. I know thi-re are some 
judges who take responsilnlitie-, and a-sunie a 
discretion they do not poss' ss ; but Judge Fra- 
zier is not of that stamp; he is governed by the 
laws as they are written; and in the f.cce of a 
plain statute requiring of him a cert lin duty, 
he says, " I h ive no di-^cretiim where a cas ■ "is 
ma'le outformy intervention." Anotlier judge 
might look around to the state o society; he 
might look arouml at the turbulent clamors or 
the people, and he mij.ht s;iy, '■ I don't think it 
expedient, under ili theidrcurastances. to grant 
this Avrit. I think no good c^-n come of it, and 
I take the responsibil ty ol not grniiugthe 
Avrit." But whtu n quorum ot the Mouse has 
ordered into cus'odv either a member of the 
House, or any one outsde of the H'Uise, wh) 
his violaed the priv h'^es of the As emidy 
and the Speaker's warrant is admitted to be 
made out in accordance with that authority, 
tlien the writ of hab as corpus ought to b- re- 
fused But the very ques ion liiade is, was 
it the Soeai.er'.-< warrant? Was the resolution 
really p^-ss^'d by a quorum? Th it is the ques- 
tion "that: wiS made in the petition [Counsel 
here referred to the c se of Bui de't vs. A'obitt 1 
IjUt, the gentlenii-n on the ot'er side say, that 
siS the return was made, at all eveuts, by what 
puiportt'd to be the Ilouse, tba' then the juiige 
lo-i h!s jurisdiction, and ought to liave iib in- 
done i the rase Liet us see: the very question 
th it is made upon the lace of the iictit'on is, 
wuetlif'r there was a quorum, with the power, 
or with a sufficient number of he House of 
Representatives, to order an arrest. When the 
petitioner ileniis that 'his was ordered by a 
legal reso'ution of thi House, is Judge Frazier 
requirea to inquire into that? Is he to shut tis 
eye-? Are the consiitnticinal provisions In re- 
gard to this, whi di protect tlie ;ib(^rties of the 
citizen, to rem lin .i dea'i letter? Well, what is 
to Income of all our constitutional rii:hts? Tie 
citizen his his lights; the Legi-1 turc has its 
rights. Tln> Legislature ttudertakes to e.xer- 
cise power; the citizen says th y have gone 
beyond their power. Supposi> the Legislature. 
infuU force, wi h a qiiormu of both Houses, 
were to order one o' us members to be hung — 
a violent supposition, you will »ay, luitusnp- 
yios'tion that is made for the piirpo'-e of illus 
tration— supiiose tliey were 'o order one of tlieir 
members to be hung, and the man were itmler 
the gallows, if an application were ma le to a 
judge, and i court of tteneral jurisdiction, to 
release that member, would he ilo that? Would 
hesa*', " you cannot inquire into the power of 
the House, the House is S'lpieine?" I would 
sav that the House is limited by the constitu- 
tion, and we cm inquire into the power ot the 
Ilouse, if it undertakes to exe cise anthoritv 
beyond what is g ant d by the constitution. If 
a mancau'io inquire i!' there is not ti Hous^, 
whether thm'e is authority to do a thing that is 
attempted to be done, wliy, t'en, we are at the 
niercy of arbitrary and absolute action on the 



part of the House. Yon have had authority 
upon authority introduced upon ihis subject. 
-Authority has been introduced b}' my coridju- 
tor, Mr. Kast, in regard to the authoiit of the 
court to examine into the passage of a law, to 
see whether it was passed bv acompeteiit num- 
ber of tlie memhers of the Legislature These 
authoritii^s wte so overwh Iming, thut, al- 
though t.vo or three were taken np, and a 
reraark or two made upon them, the,y were 
abundoned in despair. They were obi ged to 
recognize that these inquiries could be made, 
that the Legislature was limited as ;iny other 
bodv, as the Executive was limited, in regard 
to his power, and that they were bound by the 
coestituiion, and tha . if they oversteppei their 
iiound-, tieir acts were without authority. If 
jou go into the constitutionality ol the law, af- 
er it is pa-sed. ^ouflon't question the author- 
ity of the Legislature to di> what the Legisla- 
ture may do; but you say th it the L- gislature 
has exceeded its circumscribed powers. But 
here we are upon stronger ground; we are 
questioning wh"her, in fact, there is a I>e-'is- 
latiire at all to do the act which they had un- 
dertiiketi to do. Nobody will say. thutitOapt. 
He> dt had receive I author ty from m'mbers of 
the Legiisl itute, w hen they were not a Legis- 
hitute, that then that authority was binding 
ui>on Judge Frazier, or thtit he conl 1 not ex- 
amine the ease. Sujipose, inste'dof the peti- 
tion present d here, it had be nst tted that cer- 
tain persons, assuming to l>e a Legishiture, 
had pa-sed a resolution in all the f rins of a 
resolution of the House; that he was impris- 
oned by vi' tue of it: t'ud that some person had 
arrogated to b ■ the Speake of the House; eould 
the judi-Te not inquji e into it? That is iust the 
iiqiiiry that we purpose to enter into he;e, 
whether the Le.g is! aturi; posses, ed compulsory 
powers or not. 

T'ending the argument, the court ail jour. led 
until 2 o'clock, p m 

EVENING SESSION. 

The court met at two o'clock, eighteen mem- 
bers being present. Senator Thomp-on was 
absent inconsequence of serious indisposition. 

Mr. Ewing then concluded liis argument as 
follows: Mr. President and gentlemen of the 
Senate, I must exepress my oblii^a ion to the 
C'tirt for its forbetir mce au'i pidience in listen- 
ing to the long aigu ent which has been pre- 
seiitecl and which will be further exten ed st IL 
My excuse must be fuind m some degree, in 
th.' ability wi h wdiich this case nas been ar- 
g ed on the other side It has been argu'dby 
ml the gentlemen hat have preceded uie. with 
alillity and I fee! bound to make some comment 
(m that tirguraent. The argument of ilie iren- 
tlem tu who lat spo*;e o- the part of the pre-e- 
ciMionwaso mte it was (classical, it was ora- 
loric d, it was intreii ous and it was adroit, but 
1 must be perm tied to say, that I don't think it 
was p o!b nd. and that I fear it was somewdiat 
1 mbidextrou., and a little Jesuitical, and I ain 
sure tnat it wa-. in a high degree, uncharit- 
able to the defendant Perh ips ihe same may be 
said of my speech on the other side. 1 ilou't 
know liow it ma be characterized, but 1 1 hould 
take no offen-i- if s > iniu h as may see' dispar- 
aging in these remarks, were said of me. It 
n quires time and labor to ttieet arguaieids of 
'his descript on. There a'e ingenious sophisms 
thitarc presented, and that are caicub.tecl to 
imp se, even upon an oppoi^ent. as an illus- 
tration of what I h 'Ve observeii, in ri gard to 
the argumeutof thatgentleniiu, lii> sup rstruc- 
mre in regafi to the povier oftiie House t x^el- 
eg te authority to a ies~ numierthan aqiiO'um 
to C'mpel the attendance of absent members, 
was f lunled upon fal>e preni'S-s cont.dued in 
si' tio I 26t of Cushitls'^ trea iseou tn ■ power of 
legislative assemb ies ; and without discovering 
the falacy of his position in regai d to it, his ar- 



193 



gumont in rcfei-enceto the powers of the Hou e 
wou)(l senm to be iinnecess iry. But the mo- 
nient itis l>!Oke(i at, it is seen lo staid upon a 
I'ounduiion oi sand, instead of a i-oc!;, and is 
seen t ■ t nnble to pieies by its own wright. At 
tlie conclusion of my la^t jrg-unu'nt, I was ad- 
dressing the court upon l!ie puwcr of a court of 
prenerai jurisd ction, whcic an application is 
made to it for a writ of hal)eas corims, to in- 
quire into the legality or ille ality or the cou 
linemen t of the inrty \V',o mude th<- applica' ion, 
and to inquire into tlie action of the Legisla- 
ture, wdun such conliuenient wa- in pursuance 
of a legislatve onier. I have referred to the 
authorfti s that were intr duced by my col- 
league, Mr. East, showing, th-t, in regard to 
acts uf the Assembly that had been passeil, and 
that iippear upon the Statute hook, and t'lat 
prima fucU, afe laws, that such an inquiry 
coul i t :ke place in reference to the maumr in 
whi h th( y were passed; and that, although 
they were pas- ed, apparently, by the Legisti- 
ture yet we could look lieyond the mere form, 
and itiqtre into the journals, and see wliether 
the Legislature hid coinpiied with the require- 
ments of the constitution. Much more then, 
could we inquire with regard to the fact, 
whether the Legislature was acting a*; all. 
Our lights were concerned; we were citizens; 
we had our rights as citizens, granted by the 
const. t tion : ami some one attempted tn iuter- 
I'i re "<i\\\ those rights. Ii' thatseems to b" a leg: 
illative bo'iy. we have a right to inquire whether 
it be a tegislative body in tact. It seems oiivi- 
oiis th-it if a i:ortion smaller than tliat which 
const tutes a House, attempt to exercise privi- 
leires that infringe won our rights, we maj' 
ask for in inquiry into it. and my bring our 
petition for a writ of habeas corpus betV>re a 
jnd^o ; and if that judge, taking the question 
"int'i consideration, grants the applicat on, the 
he bus a right to inquir. into the matter, and if 
he h 'S Ih ,t right, that settles the <iue-tion now 
before us. He cmld look inio the joi rnal.-, he 
could lake the admission of counsel, he could 
take otiitr pro if, he could take the sta.ement in 
t>^e iieiition notdeuied in tie answer. All these 
things he could resort to in order to ascertain 
whether the prisoner had been unju.>tiy de- 
p-ive 1 of his rights. If he lound that a legisla- 
tive bo 'y, uiifier a proper lurisdlction, hai laid 
their hands on the prisoner, then lie could dis- 
miss tie case. But if either branch of the Leg- 
islitore exceeded their powers, and an applica 
tion shotihi be made for the release of th;; party 
imprisoned, it would be the duty of the jniige 
to graiit the writ, because the Legisbtture was 
exceeding the jurisdiction that ha:l been ^tiven 
to it, by the constitution. Now, upon this case, 
reference has been made to the case of the 
IMmers' and Manufacturers' Bank, in third 
Snead's R.eports. Judge Cat uthers, in that.Ciise, 
decide'! one point, and he decidi d properly, at d 
it would iireed interminable con usion it it 
were not the law — if tlie judge could not in 
quire in o the motives of tlie letiislutors in p ss- 
in^Mi law, whether they were corrupt or other- 
wi>e. If thev were corrupt, tlien the remedy 
Avoul 1 be in an appeal to the billot-box; but if 
they did not pi^ss it af er the forms of l.tw, ac- 
cording to the eonstitution, the jiK-ige could ob- 
viously inquire into that. But this case of the 
Miners' and Manufacturers' Bank is introiluc d 
with no little parade; and if the gentleman 
choose to test thi-, case, by reading the remari.s 
of Judge (Jaruthers, which are at some length, 
upo'^ '.he power to examine into the manner of 
the pass ige of a Inw, I shall be glad to have him 
do so. I shall not t tlie up the time "f the House 
iu leading these remans. I say they tend to 
the ce>ni liision that if ihat point had been bei"] e 
the court:, it would have been dec ded, as it has 
been decided Ijy numerous other auihors. The 
case in 9th Ilumpnreys has been referred ti: 
the case of tord ajrainst Farmer; and it is ad- 
duced as an authority to show that the action 



of the Legisla'ure could not be inquired into. 
It does not reach the point in this case, it is the 
question of the power of the Legis ature to pass 
a law; and it bus been de'ermiuc'l in hundreds 
Of instances in the State of Tennessee that laws 
passed by the Legislature were uneon-ttutional. 
In this case, fh.y 'lelei mined that the l;iw was 
no': unconstitutional. In th • case give*' in page 
152, of vhesa i.e book, they decide that the law 
\v s uni onstitutional. I present tlx< se cases to 
-how that wherever the Supreme Court has 
acted in rjference to the taw ])resinted 
bifore it, either on the grout d that 
the law was unconstitutional, or that it 
was not passed in a proper form, they 
have either expressed their jisajiprob tion of 
the actinn of the Legislature, or they liuve de- 
clared the law itse'f unconstitutional Our po- 
sition is, that we have a right to inquire whether 
this Avas a i egislature, whether it was the 
branch of a Legisia ure of a free State that has 
taken action in regard to our rights. We deny 
it, and we are < onsidered »s detiant in oenyicg 
it. We are obliged to deny it because we say 
that it was aright decision on the partof Jud^e 
Frazier and f it was right, it was so because a 
less number than a quotum were att' mpting to 
do that: which they wire not authorized to do 
under the constitution; to wit: to arrest a mem- 
ber Now, gen lenaen, I ask yoti, in all candor, 
whether, Avhen this case was brouiiht belore 
-Judge Frazier. alttiough this man's ^ius may 
have been piled up as hi.nh as the heavi ns, al- 
though he may have been recreant to every 
duty, although he may have been a Judas Is- 
cariot or a Benedict Arnold although he might 
have turned t'aitortohis whole previous lite, 
alrliou>;h he roiuht have been a mere instru- 
ment of a mob, if his coi stituiiona' rigt ts were 
attempted to be iofiioge I, a^d tie chose to i ring 
the question before the judge, whether he Avas 
bound to take things into consi<ieration, if only 
it was made idain to him that the rights of the 
petitioner had been interfered with, (.-ur judge 
was not in sympathy with that mob, as it is 
cad d, vvho were alt'-mpting to overriiie law 
and Older, his sympathies were <in the olhei* 
si :e, but he had a du y to perfonn; he was 
obliged to grant this wiit; he hail the jurisdic- 
tion" to grant it; his was a court of general ju- 
ri-di' t'on. He was jndgeof the Criminal Court, 
and that was a court of general jurisdii tion, 
especially on the suhj ct of habeas cor])ns, and 
when applied to he is simply obliged to gr.int 
the writ, and when he has gramed the writ, he 
is o' diged ti> decide whether that writ wns or p- 
erly granted, Ujion the answer and upon the 
proof, if any proof be adduced; wdiether he de- 
cides one way or anoHier is not material. I 
caniiOt address to this dignilieil body argu- 
leents that appeal to their tears, but i say we 
may all well look to the preservation of that 
system that was established with so much wis- 
dom long befoie we were an iiv ept^ndent 
counti-y. and which distinguished with o much 
aisciimination between the lights and powers 
and privileges of the legislative the judicial 
and the executive dep.iitments. It is in times 
of excitement, it is when the mob rails upon 
the one side and when the Legislature is exc t; d 
uiion the o her, that Aveneeu the intc positiou 
of instruments ot this description, that can be 
guarantees for the rights oi all. Then, Mr. 
President, I appreh' nd we had a right to in- 
quire, we had a rigot to decide, and it we de- 
cided one way or the other, it was wit' in our 
jurisdiction and, as I apprehend, the decisisn 
"was right. I have already attem',>ted t > show 
th t there was no aitthoritv for the action of 
the : ou-e. It is said that the return was con- 
clusive unless proof Wi.s maoe that there was 
no quorum. Now ihe presumption of the law 
is, that where a judge acts wiihin his jurisdic- 
tion, he acts U|.on proof. But what were the 
( ircumstances of this case ? pruof is not merely 
the testimony of witnesses, proof coiies from 



194 



the admissi 'ii of counsel, proof comes from the 
alletiations on ou-- side and the lack of nenial 
on the oth::r. Proof comes from the assump- 
tions that at: ma le even oa the aigumeut 
itSfU" Wlien this habeas corpus ca-e was 
bioiight on for tnal, whit was the quesMon 
before th^ court ? The question was not wheth- 
er there was a quorum, bur whethe ihe judfC^ 
could inquire into that fact. I have already 
remarUed upoi that. Judge Hani^on, in his 
testimony, say> that the question before the 
court was as to the power of Ihe Legislature t > 
act without a qui'rum under the rules of the 
Ho'ise, ana that this was a rule and tint rule 
it is sa d, was ofl'e- e i in evidence. But we say 
that the Legislature cannot act with less than 
a quorum. I t.ave only ti turn lo ihese art cles 
of imiieachment tliemseives to tiud that it was 
admiitei upon the.r face that there was no 
quorum, and it is chargeil that, thi' respondent 
attempted to prevent a quorum. Ic t.iins out 
in lact, that whether the judge acted upon proof 
or without proof, he hud infringed no right 
and nopiivileffe and has made no wrong de- 
cision in regard to the rights and privileges vt' 
the Ho ise of Ki'prtsentatives. We are alien- 
lightened, at least at tn s ti .le of day, on that 
subje;t. Wt' nowsea tha t ere wa noquori m, 
ami teeing that, we see that the deoi-^ion of the 
jud^o. whether he acted upon full testimony 
or not, was justified by the state of the f.icts. 
It woulil be a new point of impeachment or of 
indi tmeut, as I ajjprehend, if we were to 
arraign a man for having decided a ques'ion 
which, when we come to louk : t ic, shows that 
he ha> infring-d the privileges and rights of i;o 
one. Wei , may it ple-.se ihe court, there is 
another chargi' in tlie-e ar.icles of iQH>each- 
ment, and ihat is, that the Serireant-at-Arms 
Wis an ofUcer of the House, and that being an 
offlc r of the House, he was entitled to all the 
privileges of members of the House. I accord 
this principle in its fulle-t extent, that if he 
were the terge int-at- Arms, regulaily appoint- 
ed an oiHcer ol the Hou^e, or ii he weie em- 
powei-ei by ti.e House to do a certain duty that 
the House was competent to dii-ect should be 
done. !hat then he had authority to make this 
arrest. But tliere lies ti.e trouble: he was not 
Ser eaiit ai-AiKS, because lie hud not been 
appomierl by the previous action of the Legis- 
lature -with a full quorum. He w uld have 
been Serge mt at- Arms if he had been appointed 
by the Le^iislature preceding, beca^l^e all the 
ofliceri continue, althougli the rules do not. but 
he i- appointed without u competent quorum. 
Now I don't wish to attack this otUcer in any 
reso. ct as having exceeded what he deemed to 
be his duty. He knew that he was ordered to 
perform a certain thing he was ordered as an 
officer of the Legisl.ture to exeeute a certain 
p ocess, and ileemed himself to be in full pos- 
session of uower Ui on that subject. But then, 
if the a-.ithority u|)on which he acted was wi;h- 
out sanctioa oi the constitution, he was a tr, s- 
passer, therefore when the ca-e came to be 
presented before Judge Frazer, after he had 
made this arrest, alter he had made an answer 
anil did not bring the body of the complainant 
as he was Ordered to do, the judge could take 
but one cour-e in regard to it, he was ooliged 
to atUicn him, he wis ob iged to compel him to 
bring the body. He had lailed to furnish a 
suiiicient excuse for not bringing it. When 
Capt. Hej-dt comes belore the Judge, he deals 
with him tnildlyand gently, and perhaps not 
fully up to his du ies under the l.iw. Wh it 
could lie have orlered in such a case? We 
have again to turn to this habeas corpus act to 
see whao were the duties ol the officer under 
the Judge, and what were the powers of the 
olUcers. Capt. Heydc is called n mere instru- 
ment of the Legislature, and the mag- 
nanimity of Judkte Fraz-r is impeached b c- 
ause he dii not think iiroper to atrach 
the legislative memoero themselves. Now 



this is a most ungenerous attack, it seems to 
me that it is a most unfair artack upon the 
defendant, that he did not do that which they 
say would have been brave and magrauimous, 
but that he seizes upon this petty officer— this 
poor, ignorant German, and that he deals harsh- 
ly with him, wh n he did not dire to stretch 
out his hand, and grasp ti.e members of the 
Legislature. But, suppose he had, Mr. Presi- 
dent, here WHS the instrument of the Legisla- 
ture, and of the members of the 1 egislature, 
and here was a man who was a trespa>se.-, here 
was a man who was put in from of the battle. 
Why, we have heard enough in regard to the 
invasion of ti;e Capit d, for the puriiose of get- 
ting the bodies of lieydt and Williams; we 
have heard of tlte danger to it^ archieves. and 
it seems it is reganb d in the minds of some 
people as a ulace of sanctuary, huppose he had 
seized upon the members ot the Legislature ; 
that might have b en very brave, but it would 
not have been very discreet — it would nit hive 
been — we 1, sir, in my opinion, the law being 
satisfied witli the release of Williams, and the 
nominal fine of Heydt, it seems, I say to me, 
that this would have been an act ou the part of 
Judge ffrazier, of wild, intemperate wrath and 
defiance, unnecessary, uncalled for, ami show- 
ing a lieart regirdless of social order, and 
faiallv bent upon miscliief ; it might, perhaps, 
ha\e been the beginning of civil war, I admire 
the judge for his moderation. I appeal to you, 
whether his act is now to be censur d -, w^hether 
It is not rather to be applaudeil; whether mild- 
ness, and geailenes>, and consider.ite thought, 
did not chara tei ize him on that ocasiou. I 
say of Capt. U' 3'dt, that he hehaverl well as an 
iiffieer; ihat he behaveel as a gentleman; and 
what he said here, as a witU' ss, I regard as 
nothing but the naked and unvarnisheil truth. 
And itdtlijihts me, sir, in regard to an humble 
citizen, whether he stands m a hostile atitude 
or whet-er he agr es with me, to be able to com- 
mend him or lo appl.iud him. I say that (.'apt. 
Heydt did well because he thought he was dis- 
charging his duty; and I say, also, that Judge 
Fraz er did well, when, in exacting the law 
au;ain-t him. he did the least ihit he i ossibly 
cou d do. He wa- obliged toadjudgesuch c ists 
as were not remitted by the officers, i have no 
doubt, that he woii'd have been willing c > give 
the pettj' costs of len dollars, if he hail dared, 
but, at ail events, he offered to lend to the de- 
fendant, whohad' efled his authoritv; although 
he had defied it, not (rom moral wickedness, 
but, from a sense of what he thouirht his duty. 
I say, that we cannot help admiring the con- 
duct of Judge Fra^^ier. Did he desire to pan- 
der to the feeiings of the mob, as it is eaded, 
thai was swelling and roaring around him ? If 
he had tne feelings that have been ascribed to 
him, /;ould he not have infiicted the utmost 
penaUy upon Heydt? But, on the contrary, 
what does he do? In the mild spirit of a judge 
—in th m Id spirit of a judge, and agentlemau, 
and 01 a Chiistian— what, does he do, when the 
S'criff, not knowing what his dutie- were, 
comes to the Capitol and demands admittmce, 
and i? refused? Hesummons a number of men, 
and some of them may have behaved rudely, 
an I when he comes to the Capitol, and finds it 
shut, antl finds that he cannot execute the writ, 
he returns to the Judge for insi ructions. How 
the human mind can pervert the conduct of 
Judge Frazier on that occasion, is beyond my 
understanding His conduct, upon that occa- 
sion, is not Ihat of one who sought collision 
with the i.egislature; it was not that ot one 
WHO was the tool ami instrument of a oarty; 
but it was the act of a man that fel: that no ex- 
treme measures need be resorted to lo enforce 
the law. Judge Gaut reads to him the law, and 
it was his duty to lis client to insi-t upon what 
he thougnt the law w is. Then Judge Fr.izier 
says, in th« mildest form, to the s her ill', "that 
may b^ the law, but I say to you, go to the 



195 



Cai)itoI, (ry to gain admission, be peacable men, 
and ir yoii fail to do so to iiiglit, you can wait 
inuil iioiiing." Tliis w s the law, iis Liid 
down by .Tudi.e Gaiit, but it was uiiailv salle to 
a iniiiiistcr the law m all its strength and in all 
its austerity. There are no sunctuaries in this 
land ; by sanctuaries, I moan those places of 
re iige, in whah, in ol<ien linies, a crimina was 
tree i'lom arrest — vvheie lie c uhl notbesez'd 
liy ihc operation of the law. Why, the highest 
lioiise tliMt is known to our law, is a miin's 
dwed nii house VVhfn Iip has ritreatcd to that 
liouse, lie has retreated to his last lortre>s. 
Every man's house is his castle, so far as the 
cxecuMon of civ 1 process is concemed. Yon 
can break into any other h^ iisi'; yon can bieik 
into his oiit-hoii.-e", but not into h s dw Uing. 
But, in regaul to processes of a ciiminal cliar- 
acCtr. m some cases yott are allowtdto disre 
gard tlie barrier that is i rdinarily th iiwn 
mound tbe mdivi'lual, ami todr.ig him liy force 
from his dwelling; but that is a higher house 
than th>' Lapit' 1 of the St.ite ot Tennessee. I 
am obliged to say so, gentlemen, a- i is a part 
of th ■ hi".' of thelauil. 1 know that t e Capitol 
• f the State of Tennessre shouM be 'uoUed upon 
Avita levereme. and ri gari for its immense 
cost, and because it is the ass' mbiing place of 
ihe representaiivcs of the people, and t at it 
ought not lobe lightly invaded. But whtn I 
come u« it as a legal question, I am ob!i«ed to 
say that v stands not so high as that fortress 
atid castle that every man has in the land, in 
his own dW' llintr-house, by Ids own llreside, 
with his household gods around him. Ho 
stands ;> gainst auj^thingbut a criminal pro-^e-s, 
where he is chaiged as a 'elon. and in a few 
other ca~es. Then, Judg ■ Frazier did nothing 
nu(re than h s dutv; perhaps lie did not do his 
"vvhole duty. He was mild, gentle, and lor- 
bi'aring. f^ow, gentlemen, I htve saM to you 
all, I mi-ani o say in regard to the righteousness 
of the proceeiiings of Jud^e Fraz er in render- 
ing the judgment which he did — as I appre- 
hend, his decision was rifhi — if lie decided 
ri-ht, there is an end of this case; you c m no 
no larther. If you believe him guilt v of corrupt 
motives, in 'leciding rig t, you are barred from 
the con-ideration of motive b'carse ot the 
ri.iihteousness of the decision. I merely state 
that pioposliion, as I know it will not be ilis 
puted. Well, then, it is said th it Judge Frazier 
is the first JU' ge that ever 'ds, overed that a 
member could not be arres-ted under a rule of 
the House, aiithoi iziug, or purporting to 
authorize, less than a quorum to arrest its 
members. 1 say, in answer to that, that this 
was the first member of the Le islature that 
was ever arrested, or a'tempted to be arrested, 
tinder a process issuiog from less ban a quorum 
of the House; aud it seems to me that that 
ought to be an answer to the f eling that is px- 
hioit d asaiust him, that h< his steppe I for- 
war 1 lor t';ie first lime tj clefend and assert thi: 
privilege of a member ag imst the H 'Use upon 
nis arrest He h is done, it, sir. fir the first time. 
He has dared to assert the priv lege of a m m- 
ber agai st the Huu-e upon his arrest. Tie h s 
done it, -ir, for the first time, only because this 
is th ' first time that there i as ever been a 
necessity lor inquiring into the privileges and 
rights of a member of the House. I have been 
more full upon these ponts, gentl-men, hi cause 
they u er,; not fully argued by my co adjutors 
who precedefl me in the investigation ot this 
case; the other points oi this ca e have recdve 1 
more attention, and I hope, therefore, for your, 
selves as weil as for mj^self, I shall not be re- 
quired to occupy much ot your time in their 
investigation. If Judge Fraz er was wrong in 
Jiis decision in this case, then comes up Ihe 
question in regard to what cause I him to be 
wrong, whether it was an hone t mistake of the 
law, \vli> ther it was an errjr of, judgment, r 
wheibei- it was an error willf'dly made; wheiher 
it was honestly done, or whether it was cor- 



ruptly dene. Here, for the first time, we come 
to this question of corruption. It he were 
horesily mistaken in law, he cannot be h(dd to 
have acted corruptly, and cannot properly be 
found guilty of the charges made in ihi- im- 
peachment. It i~ said that if he had no jiiris- 
dict on in the cause in whicli he ina'e his de- 
cis O'l, he must be im))eaciied, iilthousrh he 
hones'ly thou; ht he ha i jurisdiction, iiut it is 
not sai 1 that a judge of general jurisdi'tion can 
'eimpeacheil lor an hinest crior ot jndsrment. 
Well, now, gentlemen, I ask iC he be, as I think 
him to be, a judge of general jurisdiction, 
wheiher he may not have made an honest error 
in legard to this matter, and whither this is 
not a ilebateable question. I thiu'- it is. I 
think, from the reply to the art'cle which he 
has made, and from the a-gument that is made 
on the other side, it may le fairly said to he a 
debiteable qtie-tian. ii it is not a < ebateable 
question, it is because we are learly right. 
Weil, I have shoM'n as I apprehend, "that he 
had juiisdiction of the case it his CM.rt was a 
court of general jurisdiction. What is meant 
by a court of geni ra jurisdiction? Why, Mr. 
Presi eiit, I do not think, and I have brought 
no hook* here, that we are to i'a\e at this time 
of da}- to investi.iiate the question whether the 
cr niinal court of Davidson county was a court 
ot generat jurisdiction m re ard to the question 
of granting a wr t of habeas corjjus Ail of 
our courts, except th'- county court antl courts 
01 jus'ices of the pe cc, are courts wiilisp cial 
delegated authority upon a iiarticnlar subject 
ot 'aw — they are iourt>of general juiisdiction. 
Judge Jrazier has criminal jurisdiction of the 
c unities of Davidson and lluthe f rd. Now, 
what j ur sdietion tias Judge BiienV he has 
ci\il jurisdiction of all ihe eases in vaiiuus 
counties 01 tiie ^-late of i ennessee. VV^ould any 
one come here ami say that Judgo Brien's court 
was not a court of gener 1 jurisdiction because 
he had not criminal jurisdiction? because he 
had not chaicery jurisdict on? Isuiposenot. 
But Ju'ige Brien is as niu h restricted a- Judge 
Frazier is. Both of them, on the snbje t of 
hab as corpus, have full and unrestrii t d juris- 
diction. .Judge Frazier can sit in Judge ; rieu's 
courc. can interchange with him and act as 
crciiit court judge. J hey may sit f r th chan- 
cellor or the cliancelh'r may sit in the circuit 
court A\\ these interchang s aie al owed, and 
all these couits are regarded as standing on a 
de id level in their rlignity as courts of general 
juri diction. Why, it would be very srraiige, if 
at this day. a lavvyer coula be found in the 
United ^ttites or in England, who would say 
that the court of commoiij pleas was not a 
Court of general jurisdiction because the cotirt 
of coraiDon pieas in Ki gland h;is no criminal 
jurisdiction The court of King's Bench has 
b ith cr minal 'ud civil juris notion at law, but 
the court oi King's Bench has no chancery 
juiisdiction, yet these courts in Engiami are 
courts of genei al jurisdiction. The supreme 
court is a court of only appellate juris iction, 
but yet it is a court of general jurisdict on, and 
it there were nothing but the powei oi the part 
01 Judge Frazier to .arrant the writ of habeas 
corpus, anil he had full and penary power on 
the subject of habeas corpus, his court would 
be a court of gem ral jui isdicti in. I might 
take something for granted, I am not gomg 
back to th J a o o of the law. We may si and 
here and sav that this criminal court oi David- 
son c unty is but acouito criminal jui isdic- 
tion, and we may call it a court of limited juris- 
diction, or of special juri-diction, but then the 
books are aga nst it. I take it tor granted this 
Sen te, high and intelligent as it is. does know 
something, and that, it is not neeessarj forme 
to I laborate a proposition that would startle 
any judge in the circuit comt in the State of 
Tennessee There ar.; courts oi limi aied juris- 
di.tion, but whenever you have a case beiore a 
court of which it has jurisdiction, then no civil 



196 



suit can he l)rouKht for a decision, right or i 
wrong, comi])t or incorrupt but you inny im 
ptach a .jiifigf for cori'uption in the dec sioii oi' 
a civil suit l)efore him if he were guilty of 
bribery, conspira y, or some of those other 
offenses t : \\h ch I ref rred 'n yesterdar: but 
he is not lialile to a civil action, 'j hose infoii )r 
judges of inferior jurisdict on are !i;il)le to civil 
actions where they have ex<eeiled their juris- 
diction, not on thij ground of corruption, but on 
the ground of an excess of jurisdicion When 
a man is guilty of an a suilt and battery, we 
don t 1 q ire v\ hether he noted ironi corrupt 
motives or not, So, whenever you have a court 
of linii ed jurisdiction you dnn't inquire into 
its m 'tivis, but. if the judge exceeded his juris- 
diction, you sue him as hiving (lone a wrorg 
■Sou could not impeach a .judire of limited 
jurisi'icti .n for deeding wrong in a cause hat 
lay beyond liis jurisiluti n, unless he did it 
co'rruty, but you could bring a civil suit 
against him lor damaaes They seem to hav?; 
ju\nl>h d the-e things together in regard to a 
judge ot Imitedjurisdi lion. A judgeof gen- 
eral jur-sdiction" is not liable to a civd suit at 
all for c rruption a tne instance of an indi- 
vidu il. Now, shidl I read these i ooks again 
or >pall I take it for gaut d thit the court 
re-oUects the decij-iou upon tins subject. The 
book- I hat were introduced were not libraries 
of books, becaue, altiiough we inght a cunui- 
lite iilmost a library upon you on the subject < f 
suits ag.anst judges, we thought we would 
bi'ing you a great eauing cise or t>vo which 
goes int") a review of the doc rin-'s on this sub- 
ject, and that this would be satisfactory. We 
have been readin«- here from a law writer, 
Cushing, a man of intelligence, a n^ an of law 
learning, a respetable law writer, and wc 
have alladmitte'l his authority on 'hisocciison. 
Now 1 bring you. in r gard'to this point, the 
deei-ion of one of the gr: test judgi-s that ever 
Silt u on tlie bench in Ami rica. It isthedtc- 
sion of Judge Kent, in whici) he coes i to a re 
view of a 1 ctie cases upon the subject. He eites 
all, or nearly all, the author! ies. .nnd reviews, 
perhai)-, twenty caes, where the doctrine ha-^ 
be n laid owti quotiniC the case of DeGray m 
Willi im Rlack-tono's reports, and quoting li-om 
a number of decisions of courts in (jreat Britain 
on the subject of ihe power t > h Id a judge re- 
sponsible for .n error in judgment, or even 
corrup; conduct in le.gard to a suit at the in- 
stmce of an inilividual in a civil case. [Cou' sel 
here read a lew words from the concluding 
pait of Chancellor Kent's opinion] It is the 
tcienier tbat he wiUlul'y and knowingly per- 
petra'ed a wrorig in giving his judsment. He 
IS then i;ible to imp achraent, n' t lor an excess 
of urisdiction, but that heknowipg y and wil- 
fully was guilty of it, Now, it is a together an 
unph'losophiral proposition to me t > sav, that 
a judge can decide a cau-e, kno ing that he is 
deciding it wrong, without a motive) He may 
be stupidly ignora' t. and he may decid- a case 
wrong from that ignorance, but if he is a judge 
of or.;inary knowledge, to say that he de ided 
a case ki.owing it to be wrong, unless he had a 
moti e, is t> my elf contra i tory. What, then, 
are we to conclmle w hen a judge decide^ a case 
wrong, and when we ook around and find no 
motive? Our conclusion then, is, that he did 
not decide the cause knowingly wrong, there- 
fore the proposition cannot be miinia nod that 
a judge decides a cause, knowing that he de- 
cided it wrong, without a m tive iha can be 
produced or b ought to hear up n him. We 
come to the conclusion then, nece-sarily and 
inevitably, so lo g as we ean find no motive for 
a wrong judgment, that he di-l not know he 
WHS making a wrong decision. Then, may it 
please the court, it tnis were an en or of judg- 
nienr, there is no question but th't .judge 
Frtizier would not Oe impeachable in- it. audit' 
the decision was wrong, we may look around 
then for a motive; and although the decision 



m ly be wrong in the opinion of this court, 
yet if we fail to find a motive, we cannot Siiy 
that he decided it knowingly and willfully 
wroni;. If he had a motive, we say lie de- 
cided the case corrujjt y, proviled it be a 
motive of sulfiient force or power to reach 
the point of corru lion; and then Jude Fra- 
zier must tie proi'ecded against if h- m uie that 
decision an i act d from a conn pt motive. If 
lie was not b a^e enough to withstu d and 
defy the roac of popular clamor, if he aeted 
from wrong motives, thi'nit nrght be siid that 
iie was unfit lo be a judge, and there is a mode 
pointed out in the eonsti xttion hy which he ean. 
h'\ got rill ol'. Mow, gentlemen, I say ttiat Judge 
Frazier is impeached for a ciime in his oflicial 
cipacity, and he can be impeaehed lor nothing 
ese. Suit; is writtiu down in tne c ms itution, 
ind it is noi put there w thout reflection and 
thought. I will show yoti that that provisioa 
is ptic down deiiher.ite'iy, and that h^- is not to 
be brought here unless for something that 
amounts to a crime in his oflicial canaoity; 
because the constitution makers have thought 
pioper to pioviie anoih r mode by which 
judges ra ly be got ril of who are gui ty of 
m sdemeanors— who are gudty of d ciding 
caii-es from an imprnpe-, thouJh not corrupt, 
motive, who are guilty of any oflicial mision- 
duct tiiat dots not amount to a crime. And 
when we loou into the history of hi- country, 
we shall find tt.at there was a reason why the 
provi ion in regard to impeaihment dio 11 be 
as it w<s. Section six of the tixtii artic e of the 
cm ti'ution of the State ot Tenne-sje, says: 
•'Judges and atoineys for the :-tue may" be 
removed from iHice by a concurrent vote of 
ooth Hou-es of the Geneial Assembly, each 
House vo ing separately; but two-thirds of all 
the memb us elecleii to each House must con' tir 
in such vo e; the vote sh, ll.be determined by a', es 
and noes, and the names 6t the meinbe s voting 
for or against the judge or attorney ot bne State, 
toge her with the cui e or cau.ses of removal, 
shall be entcreii on i he journals of eac^i fiouse 
re-pectiveiy The, judge or attorney for the 
State, against whom the 1 esislatiire may i.e 
about lo proceed, snail receive notice thereof, 
accompanied with a co,iy of the causes alleged 
for Ills removal, i',tlea>t ten days be o;e ilie day 
on which ether House of the Gdneral Assembly 
shall .i.rt there, n " 

What was that provided fo'? out of what 
did that grow? There has been a ^tl•ange 
jumble ne e, Mr. Speaker, of the cunstiiution 
of the United States a .d the constitution of 
Ten;ie-sce— that is the reason why we have any 
difficttlty m this case The constitution of the 
United States provides that a judgeorany eivil 
olficer may be impeached and convicted for 
treason, f r bribery, or other high crim. s and 
misdemeanois. Our consti ittion prnvi le>. that 
he may be impei'-h' d for a crime in his official 
capacity. Juoge Williams and Jud.ge Has ell 
were inipeacliea re fore ihe Sena'e of the ^tae 
ot Tennessee, T'^ere hail b ea great expiiiise 
and great difticulty of conviction, anl ques- 
tions wer^' rased in these cases in regard to 
wttat constituted h'gh misd-m anors, lor under 
the old cohsiitiuion of ihe State it was jjio- 
vided that a party actng as a judge, in certain 
cases could he in peaciied. [Mr. Kvving here 
lead from th^. old constitution that section 
which defines the crimes for which certain civil 
oflicers may i e irnpeached 1 Bui. under the oM 
constitutnn, civil otticers could be impeached 
for almost any ofl" ni^e. Some of the jud,.:es 
were then so old, and had held on to their ollice 
so long, that there was no ( ther mode getting 
rid Ol them, lint r en <oukl not be impeac ed 
for insanity, for imbecility, or for mere igno- 
rance, Uniler tiicold coustitu ion. a judge had 
t > ba impeaclied lor misdemeanor in odice. anri 
so, to get rid of all these difficulties, they re- 
duced t'le number of officers subject to im- 
peachment, down to a few— the Governors, 



197 



judges of tlip ,su])reme courf, jmlf^es of inferior 
courts, aiul-so-fort,h. But, gentlemen, what is 
mean by crime in an olUcial rapucity? A con- 
struction i-v atten)pti.'(l to be given to i Ills provi- 
sion of tlie constitution Ilia is reaiiy nturtliug. 
Wr. Mayiiard says it mea' s this: that whm- 
ever tlie iiouseof Ili>preseutiiives shall chose 
to make a crime in oilif.ial c pacity, ha ! be a 
crime upon which a party ran be impeaclieil 
and remove! from ollice. I call upon lawyers 
in this I ourt to say wucther su h jiii iili^a ever 
occurred to any oi them in their consti uctio i of 
th" cou-tituiion, that the Uou-e of Representa- 
tives i;- to say wiiat is i crime in an olliiial ca 
pacity, for which a judge is to be rt-moved from 
oillre According' to thi- con^tructi^ln, they are 
at liberty to say tint if there is a suit between 
A and B, and the suit is decided lor B against 
A, that it is a crime in their opinion, for vvhicii 
a removal f n m ollice can tal;e pi ice. And you, 
gentlemen, are to sit here not as ji dges. not ms 
a com t, not with the dignity of ermine upon 
you, but .vou are to sit here merely a> stolid 
jurors, to try a simple quesiion of f.ict wheiher 
tlie casii was dedded one way or the otht^r be- 
tween A and B. That is what thisco'structiou 
implies in t'ais deliuing the prei\.gative 'f tue 
House of Uepn sentatives. They are to de- 
termine Wi.a; is a crime, and whatever they 
detenu lie to be a crime, yu a e bound to 
consider a crime, and if tiie fact is one way, 
you are to acquit the prisoner, and if it is the 
other W-.y, ;,(ju are to c ji.vict lum. 1 would 
put off my lobes if I were a Senator, I would 
disdain to sit liere if I were a mere instrument 
of an opinion, lormed in has e, perhap-, under 
e.xcitenient m the House of Kepr^s utatives, to 
determine what sh:ill be a crime and wlvit shall 
be a cause uf removal f'njm otlice. Why, t is 
\vould bo vvoise than the administradon of 
justice in U'urUey, where a ■ realiish Cadi of a 
city h dds in his breast the law tiuit is to act in 
any indivi.lu d case that is l^rought before him, 
and where he administer- the bastinado at his 
Avill, aUhough tliis would not be exactly as 
bad as the batinado; for I have seen that ope- 
rutiou jerfa-med, aU'i it is one of extreme 
severity ; yet it would, perhaps, produce r. suits 
as in 11 ious and as iinjusc tov\ ards an indivi- 
dual as the iuflic ion of personal and corporea' 
runishment. I contend that this provi-ion in 
the institution means som tijing dilTereut. 
But he says, whatever, in the opinion of the 
llous'- of i.eprt sentatives, is to be coutidered a 
crime is acrune, and that you are not; to consider 
wheiher it 's a ciime or not. But my consiruc- 
tion is different, it is the uatur of tlie crime 
they ate to ch-.rge him witli having been guilty 
of. They are tlie mere grand jury, to liiid whe- 
ther he lia^ been guilty of a crime, which, in 
its na ur'-, requires a disquaiitication, and you 
iie to be the judges and the jury, to try whe- 
ther ihat crime which tuey charge has been 
committed. JNIr. Speaker, what is a crime? It 
is a felony ; you have had that read to j on ironi 
Bouvier's Law Oicc oiiary. While the book is 
being lo iked for, 1 will argue he que>tion, 
whether, if Judge Frazier W'S, fo o speak, 
guilty of an error of judgment; tlie word is 
iiot improperly used in regaru to him, even 
though he gave a judgment that was erroneous ; 
and, t'len, whether there is any mutiv'- that can 
lie impuotd to him of a corruot character. We 
have to search for a motive, and i lie had a 
very sirong motive to make the decision he did, 
and, if that decis on was erroneous, then there 
might be some ground for the Senate's com ng 
to the conclusion that it w'as doiie from that 
motive, and tliat motive m.iy have been a cor- 
rupt one. Well, I believe It is ailmitted, so far 
as the prcof is concerned, that uocorruit rao 
five can be lound. It can not be show n that he 
decided the case Isnowiugly ai^d willfully 
wrong, uuiess, at the sai^e time, it can be 
shown that he acted from a corrupt motive. 
Thecorrui.t motive is an essential element in 



the decision that was knowingly and AvillfuUy 
wrong. I say. that if he detdded wrong, we arn 
then to consider wdiother he decided knowingly 
wrong, by looking round lor a motive, aui, if 
we fail to find anv motive, then we are to cou- 
cdide tiiat it was an honest error of judgment. 
What were the motives upon that ■■>ea>ion? 
Here, upon one si e v is said that Jmlge. Kia- 
ziei- was under die influence ot public ooinion, 
for, as to their being a conspiracv to break up 
tne Legislature I believe he is acquitted of any 
direct Knowledge ujion that subject, for the 
proof has tot dly lulled in reg ird to it. In re- 
gard to his knowleilge of pub ic opinion, there 
is more doubt, and I am willing to ^uppose h;it 
he knew that iliere was exciiem nt on the p.rt 
ol iiid viduals in regard to the question about 
to come befere the legislature. That he may 
have been, in some degree, ii fluenced by reel- 
ing on the one sid ■ or on the other, is po.siblp; 
but I ask you, j-s caiiditl men, whether you 
have not the best guarantie that was t ver 
ofl"ered, >or inipirtiaiity, unoer the circum- 
stanctsthat surrounded Judge Frazi. r. But- 
ting out of view now altogether, h s c lamcter, 
on th one si ie we wi 1 say, he was opooed by 
this public, opinion, on the orhr side," he was 
opposed by tiie deiermim d attempt on ihe iiai t 
of the Legislature to bring together, at all haz- 
ards, a quorum of the House of Kepresenta- 
tives. On the one side, ho had the lear, ii you 
please, th)t, while he lived among his fellow- 
itizens here, he ni'^ht be the subject of ob- 
loquy and abuie. He had to fear, on the otlier 
side th:it, if he decided this case against the 
Legislature, he would be impeached. How has 
t ds turned out"? Is he not here to-day arraign- 
ed upon this very matter? And niujt there not 
have been in In- eye, at that very time, a dim 
perception, at least, of some coming evii to 
htm? Does he ot say, in his agony and his 
anguish— lor 1 have no doubt but that he f;- t a 
sharp prick Of anguish in his bosom when lie 
wiis told, " j.ow vou are to be called on to de- 
cide th s questi n' — "you are going to get me 
iiro troub'e." Then upon the one side, here is 
the legislature, and upon the other sde, a 
nil b, if you id ase. and he knows that there is 
Some excitement on both sides. He has son e 
letiis. It may be, and. 1 ask; you, if it is not to 
be regaided as a ba anre of <'angers on the one 
side and tlie other, and whether this would not 
divest him of all inouve to decide the case 
either pro or con. Who was Judge Fraziei ? 
Was he conservative? Was he a 3?<a«t rebel? 
Was he a violent opposer of the Legis- 
lature then in session? Was he a man 
regardless of order, of the constitution, of 
the laws? AVhy, he was a man, who, in all 
previous life, had eminent^ sought the pre-er- 
vatioii of the Union ol these States, at what- 
ever hazard of life, or liberty, or property. 
Me did everything, except lacing the can on s 
mouth, and had fronted ihe pisiol <d' the rebel 
marauder. I challenue any geiitlem m who 
|)rosecu'.es him, either manager or employed 
counsel, tofuce his rec rd Does a man turn a 
traitor, in a day, to his character eluring al his 
previous life? Judas Iscriot was a trait r 
from the beginnii g. Benedict, Arnoid was a 
scoundrel ingrain. I urn ashamed, am I pro- 
test against it, to hear my client compared to 
Judas Isciriot and Benedict Arnold. 1 am 
ashiimed to he ir a man spoken of thus, whose 
life has been blameless, who has been the uni- 
versal referee of his neiyhborhoorl whose Idgh 
reputation for justice had nude them call upon 
him as a judge before he put on the official er- 
mine. And w hat has he done? He has piayed 
.\ehilles, forsooth, and retired to his tent I He 
h:is grown tired of his armor, and laid it aside ! 
He has, at last, fallen at the knees of Baal, and 
said that God is God no longer. When such 
charges a^ these are made, sir, they ought to be 
founded on evidence. Up to the day when this 
decision was made, no man has proved that he 



198 



was not of the straightest sect. Was he a Rad- 
cal? Was he :t Cous' rvativef 1 have known 
him, I have seen him as a judge, I have seen 
hi II as a man; though I nganle 1 him ms a gen- 
tle and moderate mjii, still I regarde<l mm as 
a Radical. fO much was I mi-taken, if he be a 
quasi rebel und'-r ihe name of a Conserv .tive 
bo sa>s Stubblefle d, so ays Lea, i-o says Judge 
M. M. t rieii, so says Judge Harrison, so says 
every man of every party, who has been exam- 
ined b fore you No man knew hs politics, 
one way or ihe o her, up to the time that lie was 
caled upon to mike the dec siou in this c ise; 
and yet you are to fasten upon him t' e chirge 
of disloyalty, because he did decide this case, 
for thtt is all that was evfr done by him to sig- 
nify his position on one sid'^ o" the other, of the 
political parties that d vide ihis coiintrj'. Be- 
cause he did decide this case, you are to say 
that then he turned traitor to a long 1 fe of 
honor and probity. Had he anv sympaibie^ 
Avith the>e II en tliat were aoiing in a revolu- 
tionary manner, who were di^r. garding their 
duties, who were recreant to th ir constituents, 
and were reiusing to come into tlie As emb^y 'f 
Where ib tie evidence? Tu n to it, sir; what 
does he say while the case is on tiial? Is ic all 
hypo risy'thit he said? I> be preparing for an 
impeachment? Is he qualifying himself to be 
accused by the House of liepnsentatives, of 
high crimes and misileme;mor»? In the name 
of the good (lod, I !-a3'. h man natuie cannot be 
so perverted as that t'very body should e mis- 
taken, ami ih t he is a hypoc ite, and thiit no 
man should have d scovired itbefire. Wliat 
does he say to bis brother, whileas >et he know s 
nothing oi being called in o this cause, and 
made to partake of its excitement? He sa\s, 
"I hope you are not one oi that revo utionary 
party!" "No, I am not." "And you ought 
not to be," was the judge's re|ily, "and no man 
oughi to I e ; it is all wrong, and it does no i;0od 
to any party that resorts lo i ." But he relVrs 
to history, in regard to the "imraonal thirteen," 
and says, theirs is au examp e not to bu fol- 
lowed. He has been an observer of law and 
order; he has mide sacrifices fir the LTuion ; he 
has breasted tiie storm, -nd he carries out his 
chaiacter by opposing revouitonary measures, 
and, at last, when the caute is under trial, and 
he is goiag home, and his brother saj's to him — 
who, perhaps, had m re syinpathy with these 
recreant members than the judge, though he 
was not in favor of them — "you ought to a<t 
upon this maiter speediij'', because tho e men 
are lyingin durance vile, perhaps upon the cold 
stones, he replies, "confound the rascal, I 
don't caie if he does lie there, why doesn't he 
go in'o the Legislature, and do his duty as hf 
ought to do?" Tiiese are the things now, that 
are to be ch irged agamsthim Tliis is t ^e wick- 
edness tnat is to be charged ag.iinst him, that 
he suffered his sympathy lor these nun to over- 
ride all his previously declared princliiles, and 
the decl traiiona he made while the thing was 
going on. 

But, then, gentlemen, I am very sorry to oc- 
cupy so much of yotir time. I look around to 
the clock, and it afl'ects me ; I think, perhaps, 
I have discussed ihis case as much as I ought 
to, but I do leel so earnest in regard to it, 1 feel 
so great a res)jou>-ibility in ri^ard to it I feel 
that you are all under so great a responsibility 
in regard to it, that I must say tbut no stone 
ought to be left unturned by me, or any 
one engaged in tuis cause, "for i's proper 
adjudication. Suppose Judye Frazier had 
known that there was a determination to 
break up the Legislature, suppose that he had 
knO'Vn that there was a violent public feling, 
suppos'i that he had known that members had 
been cur ed upon the streets, and that the town 
of Nashville was all but in a state ot revolu- 
tion. As a judge he can take no cognizance of 
these matters, as a judge he is bound to look 
purely to the law. Suppose that men from bud 



motives, suppose that this lawyer fro'" Rich- 
mond, Mr. Colyar, and this rebel Jud.e (4ait, 
and that fouler rebel Judse Brien, should have 
brought a case betore him, a case purely of 
law. a case demanding action a case which 
might be by its ■ ec'sion disastrous in its re- 
sults, and he were bound by his oath a* d his 
duty as a judge, to decide it, would he not nave 
been a dcspicab'e craven, would be not have 
been less than a man, if he had dared, bi cause 
bad men were seeking to make a bad use of the 
law, to shut his e\es to its plain declarations 
and to have refused the application ? I know 
your answer must be that it is a time w hi n the 
judge is to be railed on. «nd when he is called 
on, although he may regret it, althouah he 
may see that the decision of it will "result 
in disastrous consequences, injurious conse- 
qiunces at all evenis thit atriinnph wili be 
claimed by a party undeserving a triumph, yet 
his duty is plain, the law has marl:ed it out and 
he must niaKe his decision ; and be(^ause his de- 
cision may happ n to be in accorlance with the 
preyailing public opinion, is it on that aicount 
to lie set diwn to bad m )tives ? He is obliged 
'o decide on one side or the other. What \% ould 
the qtiasi rebels have s-iid if be had decided in 
favor of the J et-dslature instead of in lavor of 
this blatant public? "Poor spirited crjven he 
dare not conlVont the power and he privileges 
O' that powerful body " That would have been 
said up m the otaer side. He mightnothive 
re ched impeachment before this Senate and 
befoie this Legislature, but a day might have 
Come V hen another Legislature of auierent 
views and sympathies should sit in these halis, 
it these quasi re: els should ever get into power, 
when they would have applied at once to what 
they would have deemed the plain law of the 
case, and would have said " this man de id^d 
a aii'Sr, his convictions and his julgni' nt, he 
decided from a bad motive, he decided fioin a 
fear of impeachment contrary to the law, and 
we arraign him." You are placing him here 
1 etween the upper and ihe nether millstone, and 
he must be eround to po -^ der whatever his de- 
csion may be, I say then, gentlemen, th it his 
decision was made under all the s:uarant3es 
that can exist for an honest decision, and that 
It was made in honesy of purpose It may 
have been wiong it may h ve been an error of 
judgment, but if it was wiihout motive that 
can be iissigntd, it could not hive been know- 
ingly wrong, because he was a man of too much 
intelligence to dtcideac.se knowingly wrong 
without any motive tor dung it; and you have 
utterly faied in discovering any such motive 
as implies corruption. But in legard to this 
conspiracy that is charged; if tliere avjS no 
crime in the conspiracy that is charged, or 
rather that is attempted to be proved aini not 
charged in this case, then he conld not liave 
been guilty of any crime, or have be: n a jiar- 
takerof that conspiracy Now, let us t irn to 
the law of conspiracy "as it is laid down in the 
Code. Section4'(89of the Code, says: "jhe crime 
of conspiracy muy be committed by any two or 
more persons conspiring. 

1. To CO nmit au indictable offense. 

2. Falsely anu maliciously to indict another 
for suchollense. 

3. To procure another to be charged with or 
arrested for any such oO'ense. 

4. Falsely to move or maintain any suit. 

5. To cheat or delraud any i-erson of any 
property, by means in themselves criminal, or 
by any means which would amount to a cheat. 

(i. To obtain money by false pretenses. 

7 To commit any act injurious t> public 
health, public morals, trade or commerce," or for 
the perv. rsion or obstruction of justice, or trie 
due ailministration of the law." 

Section 4790 lariher says: "Persons guilty of 
any conspiracy d:.scrib' d in the preceding sec- 
tion, or oi auy cmspiracy at common law, are 
guilty of a m sJem. anor." 



199 



Now, suppose yoii have a conspiracy fully 
proved lieve jiu<l suppose you lave Judge f ra- 
zier fully proved to have iieeu a partaker of 
that conspiracy, that corspiracj' would have 
arao: ntod, at most, to aniisdt meaner, it would 
not have bren a crime. y\nd tliough he might 
hive been iuipeaclied for it under tlie old con- 
stitution as a misdemeanor in ollice, for being a 
partaker of tlie cons)iirai',\ , umI de 'iding a case 
being iidlueiictd by that mo ive, yet, as the luw 
now stands, a con-piracv of this charactir is 
oiily a misdemeanor. Doing an act, and con- 
spiring to do an art, under our laws, on many 
occasii'ns, are wliolly dillerent oflVnse'i. What 
was the conspiracy alleged? To defeat the 
a^semb ingofa quoium in the Legislature, and 
SD prevent the ijissing of the consiitutional 
amendment. And what did this amounr to? 
It was 1 ot an indictaljle ofl'en-e irselt, :ind il it 
was an indir, able ollense, the conspiracy to 
accompli.-;li it was onlj,' a misdeme.nor. Hut 
Mhat docs all this conspiracy amour.t to? Why, 
have we lost our senses? Are we to have tlie 
drum antl the iiumpet sounded at every agita- 
tion that talics place in pa'ty warfare, and to 
call that ••conspiracy" whicli has happened a 
hundred times within the recoil' ction of every 
member of this Senate, and wittda a lour recol- 
lection- in the United Slates of America? There 
IS scarcely a C ngress in -vvhich there is not lili- 
bustermg, as it is cilled. in oruer t > deleat a 
measurer yet. wh' ever tli 'Ugh', in ah party 
madness, to charge tna; as a c nspira y lo 
break up a quorum or lo break up the govern- 
ment? The object of break ng U|) a quorum 
was to dvfi-at a meas ire. The design of ' tili- 
bustering'' is by keeping out of the way or by 
making rnoiious in oiuer ta gaia tune and to 
adjourn, to dt'tVat a certain me.isure. Have | 
you forgotten what was done by "ttie imiuor- i 
tai ihirieen," years ago, m the madness of 
party p.istion? And, yet, who ever thoutrht 
that this was a conspiracy or an indictable 
offense? o\\ if it were, who ever thoughi. of 
bringing it iii'o the courts? VVe are living in 
times ot iin'.\ontcd exeitement As I have n t 
much ti'i.e longer to live, I think I may look 
iiDon the panics of this State in adispjssionate 
and phdo^ophical spirit, lam -uie that, on the 
one side, theie are ages and spectres dire, Hit- 
ting before the imaginations of c 'iiservaiives 
c;illtd gvasi i ebels, that are no bitter than the 
visions of a crazy imagination, and I am certain 
that in the other party there aie faLacie:- aud 
vagaries in reference to the actions of the e 
that they set down now as rebels, that are but 
the wild" imaginings of excited men. L/iiectly 
liiivthing happens out ot the common order, 
because tlieie has oeen war, the cour-eof n-<iture 
is i ivesti-d. But tie war is over, nobody warns 
war, nobody is thinking of civ 1 war. I think 
that one party, at least, has had enoui;h of Hint. 
But Here ni^w is a struggle in ttie approaching 
times in regarU to civil righis. Oii the one 
side, the Kaoiiial party think that if they let go 
power they will be driven from the Stale; on 
the other side, the tJonservative p^rty think 
that they are deprived uuju>tly of liheir rights 
ami of the privileges ot citizens. When oi.e 
party is to lo-c power, ana the ot er pasty is to 
gain power, and they ai e struggling lor tliese 
things, they are apt to lo )k with excitud feel- 
ings and with heatea imaginutions upon every 
straw that is driven by tlie breeze. Well, this 
madness will coiue to au end at last. 1 believe, 
if the gentleman desires it, that Andrew John- 
son did n.t want a quorum I believe that 
Kdmund Cooper did not want a qi orum. I 
believe that s^me of these men chat were in the 
Legislatuie, that went out of it, ai^d tiiat were 
recr ant to their duties, did roc v\ ant aquorum, 
and that they warned to have i his measure de- 
feated, I'Ut I am far from believing tiiat there 
was anything which, in law or substance, or in 
daugtr, ani'unti'd to a couspi acy. These are 
my opinions, gen ilemeu, you will take ihein for 



what they are worth. But whether there was 
a conspiracy nj- not, it does not amount to a 
crime, ihen Judge Fnizier is not guilty in ray 
opinion. Now, in order to make out tlie ca'-e, 1 
coniend that Jiidtre Frazier must bav bi en 
auilty ot a crime in his official cauactv, 
amounting to a felony; and 1 argue th t f rom 
tlie fa't that ther(! has been provision made tor 
ev rylhins' else than this, by the constitution 
of the State, authorizing a judge to iie ejected 
I rom his office by a vote of the two lloi"i?es of 
the Legislature, and by the fact that in (he con- 
st tution of the United States expulsions from 
(dliee can take place for bribery and tre.isou. 
What IS a crime, Mr. Pn sident, as"distinLrui-h d 
from a misdemeanor? When this word ci-ime 
was adoptedr it was in lull view of the fact ihat 
ihe wonl inisdemeanor had been userl in the old 
const tution. 'Ihey intended to (U:-tii)guisU 
between a crime and a misdemeanor and in the 
very ar icle of the constitution in which we 
tin I these words, "crime in his eiliei;il capa- 
city," we And th se words, "Ju>;ices of the 
p- ace, or other civil officers not herein bifore 
memioned, for crimes or misd-ireanors in office, 
shall b<! liable to indictnent in such c airts." 
Now, when the^ used the word '•crimes" in che 
section just previous to tliis, and when i'l this 
section they used the w. rds "crimes or mi-de- 
meanors." I ask what i> inemt bv crime ov 
What i- meant by misdemeanort In its largest 
acceptation, a crime expresses every tfeuse, 
i.ut as laid down by Bouvi r, : nd asreai by 
giiitlemtn on the o her side, the word crime, in 
its more restricted stnse, and in its relation to 
inferior ofl'enses, is a felony, ami a misdemeanor 
is any n lictaole, offense that is by law, a felony. 
Wed, but say the gentlenicn, siuipo-eyou make 
out that a crime hera means a tMony, xvhar is a 
f lony ? Why, says on • (d' the geniL men, felony 
means forleiture. I would not go into these 
matters, but they have driven us into them, 
fe ony -neans Ibrfeiture, it is uerived from two 
old Saxon words which inenn a forfeiture of a 
man's feet, his estate in lands, it is a forfeiture 
oi his goods and chattels for a-iy offense the 
l>u..ishnient of which wa: thetiking ot life or 
limb. Now, we have ceased to take liie for 
manv ofl'enses, and we have cejsi d altogether 
to deprive a man of nis limbs for any : ff nse, 
and now the worii felony, which, as they say, 
means forieiture, has come to me in any offense 
that is punishaiile in the penitentiarv for a 
greater or lessiM-ime; that is a substitute that 
we have made tor taking a man's limb, or 
sometimes, tor taking hsi life. Tnen, although 
the or'f<inal meaning of felony was lorf it ur.-, 
that is not id- meaning now. They sav ihat a 
man forleits his office. That is a new construc- 
tion, ic IS a for eiture of his property that is 
leeant, and beoau-e now there are no -itch 
things as forleitures, 1 suppo-e there can be no 
felon es. But these words hive giown in t'leir 
raeauing with the growth oi time an i iroui 
being, oriiiinally, w ii-ds meaning forfeiture, 
they have come uo kvn to meau something .orally 
dilferent Irom that. A lelony is a crime 
punishable in the penitential y. In Burrili's 
Law Uictionary. forfeiture i-" deline 1 a- the 
consequence uf crime. U is so laid down in 
very many books that I have not thought: proper 
to Ijringhere, a-d then corruption i- detined to 
mean something vde, something abom nable. 
Bui. the law dictionaries say tnat the word 
corruj>tion is, sova&tnvn s used in reference to a 
violation of law. In one instnuce, it is used in 
ref rence to a violation of law b^ taking usury. 
The taking of uSury in the niiddl ages was 
cousideied a very gross offense. Usury lell 
mostly into the h aids of tne Jews. These people 
were the exceedingly od ous to the gr at liody 
of the people, aid their usu y had hronghtab ut 
ihe use of the term co rupt in reference to their 
bargains, and in that single instance, « as the 
word Used to mean a violation ol law. But in 
its general sense, the sense in which it is usually 



200 



fourid in articles of impeacliment or in indict- 
ments, it involves a cluirge of a coiTiipfcact 
from a bad mot ve, implying a generd dtinor- 
alizatlon of ctiaracler. >ow, there li ive been 
miiny unpeachinents in the United States and 
ia tlie Stiitii of Tenne-see, but from these im- 
peaclimeuts we caa derive very little advan- 
tage, for our constitution is pecaliar. Tne case 
of Hasl^ell, the case of W illiams, were all under 
the Old constitution, and they were )or misde- 
meanors in oflice. The case of Juiige Hum- 
phreys t'lai. has been cited irom the CoDgi'e.-s of 
tuc Uniteil Staves, was a case of teasoa, lOming 
direclly under the cjnstitut onal provision It 
any of tlio eiv 1 olUcers of the government shall 
be guilty of treason or bribery, of receiving 
briber, or of iiigli crimes or ini^deraeanors, tnoy 
are to be impeached. The ( a-e oi Piciitring 
•was a case of ollicial malversation, and WuS a 
high misdemeanor, and so it might have lieen 
declared, tnough he was realiy acquit ed. I 
have no objection to these cases being adduced 
as examples, yet they cannot be applied to this 
case. Well, then, gentlemen, I apprehend thjt 
Judge Fruzier, not having been guilty of being 
biibed, not having been guilty of any conspi- 
racy whtch araouiited to a lelony, not having 
been guiliy of any connection with suboruat on 
of peijury in his own court, th.t he has been 
guilty Oi no crime whatever, and especially 
that he has been guilty of no crime in his 
ollicwl capacity. In h s oflicial capacity, he 
may have doue wrong, but if he has done 
wron^' fruin stuiddity, from ignorance, from 
any bad conduct which does not amount to a 
crime, ha is not lolt without punidiment, be- 
cause here is a. provision by which he may be 
got rid of. And if the Legislature, at ito next; 
term, should ihinli proper to \otehimoutoi 
office because he made a wrong decision, they 
can do so, and there is no appeal. What, ihcu, 
is the result of the whole matter? We say 
Judge Fra/ier was right in his .lecision, and 
that ii he was riglu, he cannot be h' Id respons- 
ible for de iitng a case right, whether he de- 
cided it from good or bad moiives. We have 
attempted to show that if he commuted an 
error of judgment, he oannoi; be held responsi- 
ble, because error m judumcni inipli s that 
there was no bad motive. We have sluwn that 
if he was guilty of an error, knowing tbat it 
■was an error, that, in the absence of all motive, 
he would hj.ve 'o be removed by resorting to 
the measures provided by this sixth setion of 
the sixth article of th« coiistautiou, that if he is 
tiuflt to be ajU'igebecuise he is so siu|)id and 
ignorant as not to know what his duty as a 
judge required of him, that still you are not 
witaout remedy, because this provision of the 
cou ttution can be reorted to. We have 
attemp ed to show that if he is to be convicted 
at all here, he must nave been guilty of a crime 
or a felony, known to the Ixw as smib, in his 
offic.al capacity, before that conviction can 
take place. We hve reviewed the va ious re- 
lations of the several co-ordin.te branches of 
this g ■vcrnment. We have attempte i to show 
in what attitude judges miy stand, and where 
l,egislatures may siand, and where the Execu- 
tive may stand— that all these have iheir rights 
and th«.ir privileges, th:it these are well de- 
line!l, and that no one branch can be trenched 
tipon l)y the other. We have shown the impor- 
tance of preserving the indcijend -nee oi the 
judiciary. 1 have 'been in the habit of regard- 
ing the judiciary as the sheet-anchor of th s 
re|)Ublic, and i know that my friend who is to 
follow me, has sien the day, at all events, when 
he so rcicarded it. Wneu we lo k b.ick to tlie 
charact. r <d' our judges— our Storys, our Mar- 
shalls, our Ilaywoods— well may the judiciary 
be looked to as an important pait uf die gov- 
ernment, it IS in times of i)0 itical excitement, 
it is i . times of social turmoil- not of civil war, 
but of civil strife and (.lisunion— that judges 
may be called upon as the last resort for the 



protection of the liberties of all members of the 
iiCgislatui e, as well as others ; for they are not 
divested of their ri. his as citizens, because they 
have the fortune or thi- misfortune to occupy 
legislative seats. But, g-ntlemen, I um weary, 
and you are weary of the discussion of this case. 
1 ha^e nothing mor- to say in re^^ard to its 
merits. 1 i an see well how a finding might be 
made by this court that shall assert, wh .t it 
may conceive, the dignity of the Legislature, 
and stiil that mayopeiate to :he discharge of 
the d feiid.int. lou may be of the opinion tout 
His decision was wrong, and you may so ex- 
press youiselves Vou may give a written 
opiu'on, and in that written opinion you may 
say that Judge Frazier d^^cided the case wrong, 
that he invaded the privileges and rights o the 
egislative department, but you can say at the 
sane lime, that he was actuated by no corrupt 
motive, that, as has been proved here, he was 
uncorrupt and uni orruptible; and the di gra- 
dation of removal, t;ie ilis.irace of disqu:dihca- 
tion attaching to him and his posterity, will 
not be incurreil. Y u must be guiile(l by your 
own sense of what is demanded under tho cir- 
cumstan-es. You may assert the rights and 
privileges of both Houses of the Legislauire, 
and whie you are doing that, you need not 
sacriUce an innocent mdividual for the sake of 
a precedent; and if you can, with a due sense of 
your obligations, tind him in error, but uu -or- 
rapt you will eU'ect both purposes in reg ird to 
the future sun. tdy of the legislaliV' flcpart- 
ment, Its luture inviolability, and at the same, 
time, you may do that, which I th nK. must be 
grateful to ;ill of your hearts, discharge a man 
you c lunot help but esteem. 

I have CO. lie here, geutlei-nen, from my home, 
at the request of this defendant, to make for 
him the oe^t d lense that my ability and the 
nature of his posiiiou would allow one. I will 
receive no fee, I would accept no fee at his 
hands. 1 am no volunteer, but come at his re- 
quest Iteel hat whatever of power, of strength, 
or of inte lect is in me, should lie at hi^ service, 
and as God is my judge, I have given, and I 
will give it to him 1 cannot tiiiuk, I cmnot 
believe it po>sible, gentlemen, that the good 
liod of nature has so perverteil ihe human 
mind, as that this man Can be foui d guilty of 
corruption, i>v that it c.in be believed tnat he is 
likea whited sepulchre full of rottenness and 
dead mens bones. A man that has lead a life 
as biameiess as that of any other human being 
since the day whLU Christ was ciucified, is pre- 
sented beiore you. He is so unlortunute, as in 
cxiited t mcs, to occupy the positionof a judge, 
and because, under an ovcrwiieliumg sons • of 
duty, he has been compelled to decideadversely 
to a p.irty in the State, he is to be reduced to 
asiies, lie is to be drien our, in his old age to 
b 'g or to starve, ur like that (dd Roman captain 
who was foi gotten by liis Prince, lor wi om he 
had lought battUs and sh d his bio d, he i-^ to 
betake himself to ihe corners ot the street, and 
to cry witn imploring voice, Da ob ilum HeH- 
aario. I know not what you and other men 
uiay tliink, but, gentle nen, fornij^self, with niy 
feelings and my convictions, I would not find 
iiini guiltv of the crime with wiiich he is 
cha;;.-e I for all the gold and silver that was 
ev- r dug out of the boweis of Peru or Mexico. 
I cann jt, gentlemea, say more. 1 will cone ude 
my argument of this case, and my appeal to 
you, by reading the simple but affectiug con- 
clusion of the les.iOn-e ot the defendmt in this 
case: ''Kesponilent, now, wit < an humbie trust 
in Providence, and a consciousness tliat he has 
discharge I all his official duties, to the best of 
hi knoivledge and abilities; and thit he has 
intentiona ly committed no violation of the 
laws 'f his land no breach of the privileges of 
tlie House ot Kepresentatives, no ell'ort to de- 
leat the operati ais of any department of the 
."•t de t;oveinment; and conlidmg in tne integ- 
rity, independence and impartiality of His 



201 



judges, anrl that thoy will hear patiently, and 
conscientiously deteriiiine his i-ase, unmovefi by 
party spirit, prejudice or jioiitical motives, 
govtrned throuwliout by that moral and 
(Jhri>tian r"!e. that each Avill render that ius- 
tico to this respondent, wldch he would wish to 
receive, he submits himselt to their decision, 
conscious tliat in a little time his accusers. His 
judges and himself, will be summoned before 
an Omnipotent Ju''gc, to whom each will be 
required to answer for the deeds of this and all 
other days, and hopes that liimself and his 
judg-es. at that awlul hour, can appi al to the 
recUtude and purity of this day's work with an 
approving conscioiisni'ss." 1 thank you, gen- 
tlemen, for your patient attention. 
The court' tlien adjourned. 



SATURDAY, JUNE 1st, ISGT. 
The court met at the usual hour, and the roll 
having been called, eighteen members answered 
to their nomes, Senator Thompson bsiug absent 
on account of sickness. The record having 
been read and apinoved, the concluding argu- 
ment on the part of the State was made by Mr. 
John Trimble. 

MR. TRIilBLE'S AKGniKST. 

Mr. President and Senators: This case seems 
to have lost much of its intirest. It h.ts bten 
thoroughly discnssud, and very little is left lor 
me 'O say, and I mu-t go over some ground that 
my colleagues have gone over. Y'ou have 
shown extraordin r patience in the trial ol 
this c.vuse. This court is setting as a higti 
court; of impeachment, the highest law C"urt 
Isnown to ih ■ ^and. It is th" Senate sitting in 
iraiieachment over every other court in the land 
to \\ uich the Governor, ttie jii 'gtS, and other 
hieli otticials of the State, are ameiiable. 

TiiL' legislative and judici d brauches of the 
government have com into collision. Perhaps 
It is the flrst t.Uie in the history of Tennessee, 
in which such a colli-ion has occurred— a col- 
lision made by a jud-cial olUcer. lie willed 
tiiat collision, he brought it about, and hence 
tbih trial 

Free government— the struggle of all past 
history, and achievtid at la^t by livers of bl lOd, 
by anguish and tt-ars — free government has 
ever e.xisteil on this continent, from the jilaiit- 
ing of Plymouth Ko ^;• aud tfie settleaient of a 
colony at'jamestovi n. The capacity of man for 
free government has been tuny vindicated by 
an experience ot 250 years, and we are enjoy- 
ing the divine blessing of free government 
still, and accourt it the dearest h.ri age be 
queiithed lis by our fathers. 

Free government divi^ies itself into three 
branches, legislative, judiiial, and executive- 
three coordinate, independent branches of a 
government. A consalidati m of these thiee 
<li partiuents, constitutes a despoti-su; a triple 
distribution of theai insures fiee government 
Ttie consutntion of your St^te— it>she. t-anclior 
and the highest law of it> people— is binding 
upon all. This constitution, the hi- best law of 
a free people, clothes the legislative department 
witii the highest pow r. All pow^r is inherent 
in the peopie, and they have bestowed upon tne 
legislative department entire legislative power. 
This power is omnipotent a^ th.it of the British 
Parliament, and it i^ ony limited by the c n- 
stitutun of Tennessee and lb t of the united 
States. This law-making power lies in tne 
Legislature of Tennessee. The . end)ers of the 
Legislature are supposed to be electetl b> a vir- 
tuous and enlightened people and it is pre- 
sumed that such a body, invested with these 
larg" sovereign powers, "subjeit and accouni- 
able to their constituents, will act witti wis- 
dom and consideration. Our theory of govern- 

13 



mentsupposps that this body, chosen by a vir- 
tuous and enlishtened ronstituency. can be 
intruted wiih power. If you cannot trust the 
legislative body, whom can you trust? Is 
there any ground for the aoprehension of the 
abuse of power by such a body? Aw 'y. then, 
with these old womanish, hypochondriacal 
ideasof the abu-e of power! The Legislature 
being a seven ign body, being called into li'e 
for the^e great ends, are, as a matter of course, 
invested with all the power necessary to attaia 
these ends. My idea i^, ttiat a Legislature, sit- 
ling as a legislative holy, are not only jnages 
of ihe qualification, ri'turn and election ol their 
own bodj'. but aie necessarily the svipreme 
judges of their own mode of proceeding, sub- 
ject to no higher power, save that ot the "people 
ot tlie St ite of Tennessee. The injunctions and 
the prohibitions of the constitution, are ad- 
dressed to these representatives oi a virtuous 
and enlightened ( onstituency. They are re- 
quired, wlien their credentials are produced, 
to approach the altar of the living Almighty 
Killer, the God of the universe and Fatht-r of 
us all, and there, with u]ilifted hand, to swear 
a sacrament to observe the constitution of the 
:-tate of Tennessee, and the constitution of the 
United States, and fnitht'u ly to perform all the 
duties which pertjin to the tronorab'e otti( e they 
have been called on to till When thus organ- 
ized, th' y are responsible to the people, and to 
an enlightened public op nion, but they are not 
responsible to any other hiiniin power"; btjyond 
this, they have no superior upon earth, none 
whatever. I know there is a class of cases 
wher " the coiirt^ have exercised the power of 
declaring the acts of th ■ Legislature unconsti- 
tutional, and I accor.i that "power to the juni- 
ciary. But I deny tothe judici :ry any revising 
or controlling power over the t^eneral A-seui- 
blv. If there is any subordination, that subor- 
dination belongs to the judiciary. The legisla- 
tive branch is le pon^ible only to its own moral 
nature, and to an enlightened public opinion, 
and to the moral Kulei- of tlie universe. 

Now, I invite your attention for a few mo- 
ments t^ the consider.ation of the jiowtrs of the 
jndi iary — a department co-ordinate and inde- 
pendent, in its true sense, whose function it is 
to interpret and to administer the law, lo de- 
cide as to the right or wrong between indivi- 
duals—as I said, to int rprd law, not to make it, 
not to execute it. Their boundaiies are delined 
:ind limited. Have they any power beyond 
this? They ma-' no m re invade the legislative, 
thi'.n the legi lat ve may inv.de the judiciary 
functions. Ours being a written constitution, 
that constituti"!! binds the Legislaiure ; that 
consti iition binds the judiciary; ihut constitu- 
tion binds the Execntive; that constitution 
binds the sovereign people them-elves I cheer- 
tully adoait that th-^ jndiciary have the p wer 
to de-lare an act of the Legislature uncon-titu- 
tional. This power has been accord d to the 
judiciary from the absolute necessity o' the 
case. Wien the\ find that a law confl cts with 
the constitution, as a matter of necessity, they 
are compelled to decide in tavorof the consti- 
tution. "But that IS the only case where they 
have tt is power. In Gi^eat "Britain, the foun- 
tain-head of our institutions, the judiciary have 
never assumed to pronounce an act of Parlia- 
ment void But, under our American ii s it«- 
tions, having a writ'en constituti in, the ques- 
tion early came up before the judiciary-, audit 
is a very intei esting hi-tory, that I would re- 
commend you at some future leisure hour, to 
review. But how d d th- jurliciary, the Su- 
preme Cciurt of ' he United ftates, presi ed < ver 
by that great and Lood man, John Marshall — a 
standing model for all ages,— appro;ich this 
question when 't fist aroe? Recognizing that 
the Cougi ess of the Unite States were the peo- 
ple in iJongres- as embled — that it wa- a co- 
ordinate, indepemi i.t, and most important 
branch of the government, the Supreme Court 



202 



Approached the question with a degree of pro- 
foun'l respect for the legislative branch of the 
govertiment, whi<h is greatly to be commend 
ed. Wh n John M irshall approached the ques- 
tion of the constitutionality of an act of Con 
gress, he approached it with the profoundest 
respect, and because an act ol Congress and the 
coustitution were in conflict, it was d' chi'i-d 
that the act was a nulli y. Now, 1 (teny the 
judicial dcpirtment any powers beyond what I 
have stated. The judiciary has a shield, it has 
no sword. Our jiulicialfunotionarj' has turned 
bis shield into a sword; he has inv.ided the 
r ghfs and privilesres, not only of the House of 
Kepreseutatives, but of the people of Xeu- 
nessee. „ . , 

Your State constitution is worthy of especial 
study. The whole txe<utive authority of the 
State is vested in anodicer. known as the Gov- 
ernor of Teunes-^ee. Knowing tie Ion? conflict 
beiwee the House oi Commons and the Exe ;u- 
tive of England, where, so laie as the reiicu of 
Jtimes the s-econd. members o( that House were 
arbitrarily aricsted, and sent to the Tower, 
constautional chtcks have bi-en imposed, efifec- 
tualls' guarding the Legishituie against the 
611 roachments of arbitr iry power on the part 
of th- Sovereign, and similar precautions have 
been taken by ourselves. That great struggle 
for the liberty nf the people, which iias been 
going on through all time, resulted ihere in 
stripping the sovereign of Euj.'land of that 
power; so that the Queen of Eng and dare not 
doto-dav what this jadg.' ot a petty criminal 
court dare lo do. I say at-ain, that the grand 
monarch of tlie irreat Pimpire of Great Brita n, 
dare not cio, and has not done it, siixe the reign 
of James the .'econd, what this blind, infat- 
uated judicial olliC'ir of a petty criminal court, 
aared, wroug-lieadedly and wrong-heartcdly, 
to do. 

What is the theory of your .State constitution, 
so far as the Executive is concerned? Look at 
your constitution : thatconstitmion hasstripped 
the Executive ol the State of Tennessee, of all 
power. He is authorize.! to set fvrth, for the 
information of the I.egisljtiure, the condition of 
the State; its condition in relation to commerce, 
to manufacture, to agriculture and to educa- 
tion. He can ofler his recommendations in 
reference to to tin se matters, but there his power 
ends. 

I conffss, Mr. Prepid<nt and Senators, that 
my thinking, my readng— as best I have been 
able to think— has led me to be jealous of the 
Executive; and hence, paying always to the 
Executive reonnimemlatious that high lespect 
they are entitled to, I have never held mysell 
bound, in the smallest degree, to conform my 
actions to his recommendations. 1 have a ways 
had, and now especial I \ have, a high estimate 
of the value and importance of the Legislatuse. 
My faith is in the legis ative department ot the 
government; for Uiey are elected by the vir- 
tuous, intelligent citizens of a free State, and, 
therefore, my coiitideuce is in the representa- 
tives of a in e pei>i)le. For our institutions are 
jjlanted on the foundations of an enlightene I, 
virtuous, and pa riotic constituency. There is 
our safetv, the g ■vernment resting uo' n the 
people, i know this term has been employed to 
flater the people with. I don't so employ it. 
I don't rely upon your judiciary nor your Kxe- 
cutive for the salvation of the nation; I rely 
upon a virtuous, enlightened, vitalized and free 
people— the American people, who will never 
fail when the emersrency comes Free thought, 
free speech, a tree pre-s, me common schools 
— these arc the concomitants, at least, of Amer- 
ii an liberty. And these are n^ .t mere Ctopian 
dreams, but they have been wrought out in this 
great American government. 

I will now give you my views, as to the spirit 
in which the Ijws should be interpreted and 
administered. The lawyer- accept as law, 
whatever is laid down in the hoi-ks. The pro- 



fession, ordinarily, goes no further than this. 
They come, for the most part, to be slaves of mere 
authority, and if they only get to see what 
Lord bllenbiirnugh has ttioiight, or what some 
other gieat legal luminiry his thought they 
are fu ly s.tistied It has been said of British 
lawyers, that when they come to exercise the 
functions of statesmen, as members ot Parlia- 
ment, that they look at everything through a 
microscope, instead of a telescope There are 
men that interpret law as a dead letter, and 
there are oth rs that interpret it as a living 
spirit. Now, the letter, you know, killeth. but 
tne spirit m ikeih alive. Let me refer you to a 
decision of Lord Mansfield, which will ilhistrate 
what 1 mean by treating law us a living spirit. 
Lord* liief Ju-tice iNlansfleld was a scholar, a 
man of literary tastes, a man of fine uoetical 
ability, as well as a man learned in the law. 
He was learned, not only in the common lavA' of 
England, but learned m the Roman civil law — 
the hnmaniries of Roman civil law. He was a 
cultivated, large-minded, liberal interjireter of 
the law, according to its sense and spirit, ihis 
case came belore him on the King's Bench In 
tiie semi-barbarous times of England, when 
she was ruled by tne barons, the law was, that 
a vessel wrecked was forfeit d to the owner of 
the land where the tide had drifted it, and upon 
it finally rest; d But a spirit of progress had 
ari en in England. An attempt was made to 
Ti medy the law, and all vvas done that prob- 
ably could be done. The law was so lar modi- 
fied, as that, if a vessel, being wrecked, could 
be proved to have had a cat or a deg, or any 
living creature aboard, whi' h came alive to the 
sh ire. the vessel should n<t be de med a wreck. 
That was the statute enacted at Westminster, 
intended to soften the barburity of the law. As 
late as the time of Lord Manstield, the close of 
the eighteenth century, a case of this nature 
came ui) before hun. There was no proof in the 
record that a living creature came ashore, and 
the owner of the land claimed the wreck. How 
did Lord Mansfield decide it! Lord Mansfield 
said that a true interpretation of the law 
amounted to this: that it the own r could iden- 
tify his property, it was not a wreck. I may 
have something more to say, on this mode of 
iuter|iretation, in another part of the ca-e. 

We are engiged in tiying Ju ge Frazier for 
a wrongful and Avilll'ul abuse of judii'ial iJOwer. 
These articles of impeachment allei:e certain 
acts to have been done by Thomas N. Frazier. 
In substance, they amount to this, that the 
House of Kepresentiitives had in custody two of 
its members, and that they had them properly 
in custody, as facious and seditious mem- 
bers. The articles say, that these members 
were in the lawful custody oi' the House, and 
that Judge Frazier, knowing the facts of the 
case, knowingly anl willfully issued a writ of 
habeas corpus. Bat, I say. thatth • Legislature 
was characterized by greit forbearance, in 
making the return which they nid, but, not- 
withstanding their return. Judge Frazier, will- 
fully an. I illegally, issued a prec-pt to the 
sheriff and the sheriff entered the capit I, vio- 
lated the castle of the sovereign people of Ten- 
ne-sce, and took these members fiom tin.' cus- 
tody of the oHicers of the House. Mr. Ewing 
puts up a special plea in abatement, in argu- 
ment of a character that would be proper, pei-- 
hiips, in a petty criminal court, but which 
certainly is not proper in suchaca^eas this. 
The artic'es oi irupeachment inaply that the de- 
cision was maliciously and corrnptly given. 
The guilt ot an action lies in the int- nt. But, 
Mr. Speai«er, ad cr me has its origin in dark- 
n. ss and in social depravity. A man steals his 
ntiKhhoi's horse, that is, he appropriates so 
much of his neighbor's labor ; but can a judge, 
who decides such cases, step out of his own 
piovince into that of an independent, co-ordi- 
nate department? Can he revise its d. cisions? 
But, genilemen, you have these articles ot 



203 



impeachment before yoia. The question is, 
whether the acts ascrii'el to Thomas N. Fra- 
zier were done by h m. and whether ihey were 
done with a wi-.ngl'ul. willful, and ••riminal 
intend. Now, 1ft us see whutthi- facts are. In 
the spring of 18G5, republic ui u-overnment hud 
been overthrown in Tennessee. Fire, tamine, 
and sword, had been li-t loose thr nighout the 
State, and they did tiieir work thoroughly. 
The government ot the Statf lay in ruins. The 
hands of usurpers had drstroyed the fair faliric 
ot our State government. In tin' spring of 18153, 
the President of the United States siw that 
republican goveinment was overthiMwn. As 
the firit step to restore it. a Military Governor 
was sent to Tennessie. That Governor exer- 
cised military jmwer in small portions of the 
State, such as had be"n redeemed ■ ytlie nation. 
In the spring of 1865. a serious attempt was 
made to construct republican government in 
this State. Tiie people were invited to aid in 
re toring a free State government. Delegates 
from all parts of the State came to Nashville, 
to assist in reconstructing the government. I 
Avas a memberof thutoonvention, and I adhered 
to the idea of a constitutional convention, but a 
nearer cut Was taken at the suggestion oi the 
Military Governor. The action of this body w.is 
submitted to the people; an election was heM. 
This Legislature was denied, and convened at 
Nashville, in April, 1865. It commenced its 
■work when the Senate was ele> ted. It was 
elected to sit till October, 1.S67. The 8p, aker 
■was elected, and rules were aiiopted. The 
House of Kepresentatives met, and organized 
themselves as a legislative bofly, and they 
adopted rules, one of which has been read. 
Now, the two bodies thus organized, set out on 
their grand work in drkness, but they Wfri; 
lookintf for light This rule, No. 14, wa- adopt- 
ed—it became a law of the House Alter being 
organized, they possessed legislative power. 
Well, now, this Legs ature having thus or- 
ganzed, and having sat, p-obably, until June, 
adjourntd to meet again. At the time appoint- 
ed for adjournment it met again, with the stime 
Speaker, the same officers, and the same rules. 
Finally, it adjourned; afterwards thu Gover- 
nor issued his proclamation, convening the 
Legislature in extraordinary sessiim. Congress 
h.ad proposed an amen Iment t) the constitu- 
tion, and ihey met to act on that amendment 
liut a great hue and cry was raised against that 
araeniment. That amendment, whic.i was in- 
tended for the benefit of rebels and of rebel 
sympathizeis, they chose to regard as aerain^t 
th;ir interesis, and accoidingly denounced it. 
An attempt is made to prevent the a loption of 
the amendment. The spirit of rebellion again 
raised its cry, "rule or ruin" The spirit of 
public opinion, in regard to this matter, had 
penetrated the whole of society ; that virus was 
lurking in its very vitals. How did it show 
itself? In the oufpouringo' anger and reveuL-e- 
ful feeling, and ihe de lunciation oi the Gene- 
ral Assembly. The Legislature was donouneed 
as a bogus Legislature, a pretended Legisla- 
ture, a radical Legislatuie, a m ilignaut Legis 
lature. There were ten or twelve members of 
the House, if no rebels, at least rebel sympa- 
thizers — and, by the way, a rebel sympatiiizer 
is not as honorable as a rebel — who were trj ing 
to prevent the assembling of a quorum. Now, 
such was the state of opinion here in July, 1866, 
on the assembling of the sovereign people of 
Tennessee in their palace of justice. They met 
to consiiler an amendment that had been pro- 
posed by the Congress of the Uniied States, in 
order to restore the Southern States to their 
relations with the general government. Coulii 
there have been a more important occasion"? 
The Legislature was called together on the 
anniversary of American independence. The 
members of the Legislature were lound, like 
faithful sentinels, at their post. That body 
became a living, organised body. On the 5th, 



forty-nine members were intn irplaces in fte 
House of Represen atives, but others are lurk- 
ing about from rat-hide to rat-hole— enough tj 
make a qii Tum of fifty-six. These members 
determined to b'eak iipthe Legislauire. Judge 
H'razier was living here at >'ashvilie. He is 
ready to rece ve any suggestion thamay be 
made to him on this sutgoct. He i- oiien, at 
every p. re. to ihat whicfeis worse than small- 
pox—worse than cholera? Judge Frazier was 
occupying a hii{h oflicial position Un the 5tb, 
I say there were over forty-nine members 
present— on the 6:h, fifty-one, on tlie 7th, lil'ty- 
five. That was getting very near a quorum ; 
something must be done. On" the 11th, the res- 
olution was adopted, that these absent mem- 
bers should be taken into custoily. Was that 
not a patient and foi bearing course on the part 
of the Let/islative deparlmeiity Tliere was a 
little faction set ing at delLmee the law-making 
power of ihe State, and ■» resoluti)n was adopt- 
ed, th;it these disorderly members should be 
taken into custody by the Sergeaat-at- \rnis. 
The liignest autnority in the State, and in the 
land, has said, that the warrant of the Speaker 
itself was cone usive. and that you could not 
go behind it. Then, here is the resolution, here 
is the warrant of ihe Speaker, to bring these 
membei-s under discipline, just as Judge Fra- 
zier might liave discijjl ned the clerk of the 
criminal court, or a memberof his bar. Here 
is a House, representing the popular branch of 
the General Ass mbiy, in which there are sedi- 
tious members, and they had iind'r aken to 
bring them to asenseof their duty. On the 16th, 
two of these members, Williams and Martin, 
are in the custody of th- Sergeant-at-Arms, 
and the ques.ion begins to be interest- 
ing. Now, there is an imminent danger of the 
ratification of ihe constitutional amendment. 
Now, some steps must be tiken, ad that 
quickly, or all hone is goie. Under these cir- 
cumstances. Judge Thomas N Frazier issues 
his wavran to the sh 'rifl", to take the -sergeaut- 
a -Arms and one of thise members ot the House. 
The Judg; sits upon his high and mighty 
throne and issues his order, i hut the Marshal 
of tile House of Kepiesenti;tives shall be led 
into his presence Judge frazier knew what 
was going en, but he issues his order notwith- 
standing. The case in the court is set for nine 
o'clock. The House had adjourned, prob.ibly 
to meet at ten Would not courtesy have re- 
quired him to notify the egislati' e body of his 
action? Why. one of its members cannot be 
seized tor felmy, under parliamentary law, 
until the House is notified. The House learns 
of this, and a resolution is adopt.-d which is 
worthy of being read and re-i"ead In that res- 
oluiioi), the faets of the case arc recited, and 
they ve^pectiiilly, but emphatically, deny the 
jurisdiction of tlie judge. Th cjurt adjourned 
over until the evening, at two o'clocs. The 
House had not time to employ a lawyer. I 
adduce this fact, as shewing the animus of this 
judicial functionarv. The cause is continued 
until two o'clock; the counsel apjie ir ; the ar- 
gument begins in a cause involving a question 
of this magnitude an I importance; an excited 
crowd are there as spectators of the proceed- 
ings; this crowd have been called a mob. I 
don't mean to say that every man there was 
anima'ed by the mob spirit, but that was the 
prev.iiling animus. 

The case was argued. Then we have Mr. Col- 
yer s speech; then we have the ^hoiito of the 
C'owd, and then you hi.ve an attempt, whieh 
shows the spirit of tlip movement, to compel a 
counsel, employed at twelve o'clock, worn out 
with duty in the Senate, ti) commence his urgu- 
m-nt in that court. Judge Brien raises the 
shout; he wishes to have the argument made 
now, whether counsel be ready, or not. Final- 
ly, the case is adjourned over until nine o'clock 
the f )llowing morning. The case is then re- 
sumed, a. id the argument proceeds. Finally, 



204 



amM the hoetinps, the shouts, and the curses of 
the mob, echoing and re-echoing their denun- 
ciations of tlie Legis'ature, the procei clings are 
brought to a close. In the petition, the virus is 
shown which animated ihis p.irt)^ Very few 
words were used, but theje were full of venom. 
It is fcCt forth, that the G veriior called the 
Legislature toget er " by some sort of proolam 
ation." The Judge receives tliat petition, 
couihcd, though it be, in terms of insult and 
rude disparagement towards a co-ordinate 
hr^n Ii of the government for which he was 
bound to feel the pri>foundest respect. Surely, 
a seu-se oi duty ought to have made him reject, 
with Inriienation, a pi titiou witii that snetr and 
venom in it. \\ ould this c uirt of impe.ichment 
have received a paper so offensive as that that 
notified him of the animus of tlie people pre- 
smtiiig it? Then, it was stated in tluit iJeti- 
tion, that there was not a quorum. Judge Fra- 
zier knows that is not the way to sta'.e the lact. 
The number of persons present ought to have 
been -tatcd, and the casi- ought to have bern 
decided. Now, in decceny, Judge Fra- 
zier ought to have looiied th.tt petition 
i-quaroly in tlie face. There was indecency to- 
wards a high executive deiiartment of the 
government, but lie could not se ■ it. The at- 
mosphere of the criminal court had disturbed 
his alfactoiies; he could not smell the taint 
But, then, again, the return to that p. tition 
■\vai squarely placed before Judge Fruziir. I 
s ly, and 1 smd thu-n, tiiat the reiurn of that pe- 
tition ought to h.ive been entertained; tliat it 
■WMS absolutely conclusive, and that no imp ir- 
tially miniledjudae, who mean' to do his duty, 
cor.ld have failed t > see that the ri turn was 
concluMve. That return I will heie read: "Be 
it He olved by tlic House of Representatives, 
That w^ dorespect'ully, but most emphatically, 
ceny the jurisdiction ol' said ciminal lourt in 
the premises, mikI the authoiiiy of said court to 
inter'ere In the discipline and organization of 
tiie House of Representatives, and direct C;ipt. 
Hi ydt, as "^erge.int-at-Arms, to tender this res- 
olutior, to h'S honor. Judge Fr^zier, as his re- 
turn to siid writ; and, furthermore, that Capt. 
Heydt be directed to continue under nrrest ad 
raemlies detained b}^ him, under said resolu- 
tion, until otherwise ordered Uy this House." 
I have read this return to the petition to show 
the spirit of iorbearance, of courtesy, and con- 
descensiun, wliich a branch of the Legislature 
of a fiee govtruuieut paid to the o;der of a 
petty judge. Mr. President, suppose ihat act 
had occurred by wav of a \iolationo! the rights 
and privileges of this Sen.ite. It is well for 
Thomas N. Fr^zier that it did not occur at this 
eudof the O.ipitol. If it had, Thomas N. Fra- 
zier would have Ijeen at the b.ir of this Senate 
in one hour, if it had cost the life of every Sen 
ator here. Tnere would have bi en no compro 
mise of the dignity of the rights of the penplein 
this Senate Lhimber; he would have been a 
this bar. But the flouse bore with him; it was 
patient and forljeariug. It made a condescend- 
ing return, with the extroinest courtesy, and 
the (xtiemest forbearance Th y say so ihe 
Sergeant-at Arms, cirry this, our repectlul 
and c-m[>hatic reply, to Jud_'e Frazier; we re- 
spcctfidy and emphatic illy deny his jurisdic- 
tion. Is there a luir minded lawyer, who will 
say that this was not a coudcseeiiding return? 
Here is a le^pectful, tonclusive return; as 
soo'i as that rtti.rnwtis made, Judge Frazier 
ought instantly to have turned this case over to 
t:ie House ol Kepreseniitivis. The courts had 
nothing to do with this case. Bu' there wa 
not a particie of proot bmught before Judge 
Frazier, as to what was done in the House. 
Suppose a conflict had taken place be- 
tween Judge Frazier and Judge Lea. 
Supposea meraberof the bar should nave waii- 
touly attempted to brcalc up his court, and the 
judge should have ordereil that person into 
custody, and that some intermeddling person 



had stepped round to Judge Lea, and procured 
an order for the release of that person, what 
would Judge Frazier have done inthatc.se? 
Suppose the Supreme court were in session, and 
a n;eniber of its bar wtre guilty of contempt, 
and a petition was got out for him. and taken 
to Judge Frazier, would he take Jurisdiction in 
the case? Is not the Legislature as indepen- 
dent as the Supreme court? But Judge Fra- 
zier, in the f ice oi this respectful return, with- 
out a particle of proof, grants tl,e writ. What 
does this prove? It piovts that he was going 
to do wh.it he set out to do; that he was going 
to dismiss "Williams and JVlariin, tw.) weak 
men, engaged in endeavoring to break up the 
Legislature— men. as ho sa>s, wlio ougiu. to 
lie on the roek, but whom he means to dis- 
charge, and wh in he does discharge. This or- 
der is isued by Judi^e Fraiier to the sheriff of 
D.ividson ( ouuty. The sheriff comes up here 
with iiis order, prowdng around the Capitol to 
see these men, and he cume to the front door 
with his posse; he finds the door fastened, and 
they canno; get in. He returns back to Judge 
Frazier, at Judge Gaut's office, the hea -quar- 
ters of this proceeding? But Judge Frazier was 
lounl at tiiis office at a late hour in tl;e even- 
ing, when the darkness was over the land, a 
fit hour ior such a proceeding. Judge Gaut 
roads the law, not to thejuge, but to the 
sheriff. He reads the law, that a sheriff may 
go and break open the doors of the Capitol; to 
anxious are tliey that these psoceedmgs should 
'ake place, that they are willing even to breafe 
into the door of the Capitol .Now, you cannot 
break into a private residence for any offense 
less than a leloiiy Then, they break into the 
(apitol as they would into th ; retrear of a 
felon. He says, that was the law. He did not 
command the sheriff to do it, or not to do it. 
He does not liaveth tnuich courage, lie says, 
that may be the law, but yoa had better wait 
uiUil morning. At daylight go up and surprise 
th*? enemy. And, accordingly, this sheriff', with 
his posse, every one of whom hiid been either a 
rebel or a rebel sympathizer, Irani the sheriff" 
down, enter i;. to the Capitol of tiie people of 
Tennessee. They tke possession of these two 
men — they seize the Sergeant-at-Arnis, and 
take him before this august, almighty, judicial 
iribunal, where he is fined. Niw, let us t.ike 
the gvntiemeri's argument. They say, as a Inst 
despairing resource, there is no quorum Sup- 
pose there had been a quorum lor a moment, 
then what would have been tt.e i flense? What 
would have been the nature of the offense if the 
Fxecutive were to come into the Le^MsLituro. 
with a file of soldiers, and turn them out? 
Simply, assumption; simply, treason. Well, 
now, as his last ivfuge, this technical objection 
is made, that there is no quorum. Wed, now, 
a fiuorum was not necessry, if I understand 
the law. Take that section of the constitution 
which says that twothiids shall constitute a 
quorum, and that a less number may be au- 
thoiized by law to compel the attendance ot 
absent members. Wh t does that me iu? They 
narrow down that section of the constitution, 
ftnd confine it to the dead letter of the law. 
Tiiey say, that, "by law'' meaus by a statute 
passedby the General Assembly. D; es the con- 
stitution say, by utatutelaw, by a law of the landt 
None of these term are emidoye I, it is said, 
'•may be authorized by law." What is law, in 
a reasonable, fair, liieral cun-triiction? My 
col eauaie read you authority to show that iiU 
the parliamentary law ot Lngland, applicable 
to this country, was in force, that the Legisla- 
ture, eveu, have the power to punish (.ut-iders 
for conteii'pt. Now, this must be lonstrued in 
a Iberal sense, because it is ia furtherance of 
the greiit ends of legislition; it is best 'Wing 
the p iwer upon a bod.y that may be trused. and 
when so co/istrued, It' uieans, th it they may, by 
law, according to paliamentary law, a law 
passed by tnemselves, a rule of the House, com- 



205 



pel the attenilance of absent members. If they 
h^Mlsai'l, '■ shall be iuithorizeil by a law to be 
])a^sei! ! y the General Assembly"— if they had 
meant tKrtt, it w ould have been so stated in the 
con'titiif ion. But. why not trust the represen- 
tatives of ;he people? I a«k why the conatitu- 
tioii should tie down a House to an act of the 
Legislature, when the constitution gives to each 
House all the rights of a branch of the legisla- 
ture of J free St;it<.>'? We say that the constirii- 
tioudiil give that power, that it was given by 
pai'liamentarv law, by a liwof the Hunse, by 
rule No. 14. What was that rule? I think Mr. 
i^wing said, 'n his -peech that it only obtained 
from ses.sion to session. That Is like construing 
the statute of Westminster, to which I have 
alreidy reierivd. But the House organizes; 
they adopt a rule for their government dm ing 
all their session. When the Legislature met. 
in exiraordinary session, they had the same 
SpeakL'r. the same ollicers, the same rules, anl 
tind' r their rules, by I he sti iciest construc- 
tion, fht-y had the power to send for ubsent 
mem hers." 

Mr. Kwing — Mr. Trimble, will you al'ow me 
to interrupt you for a moment? You say tha" 
we are construing the law upon the principle 
that 3'ou say was repudiated by Lord Mans- 
field, "in regard lo a cat or a dog coming alive 
upon a wreck. Mr. Gushing, who was indorsed 
by you as authority, suys it meiins from session 
to session 

Mr. Tiimble continued— Suppose Mr. Gush- 
ing did say so, who made him a Pope? Who 
made h'm iniallii'le, if he talks as you say he 
talks? Who is I^ir. Cuhing? Wliy, he is no 
abler man than Mr. Kwing. But, supp -se Mr. 
Gusliingdid sav tiiat. ish'ja Pope? Is heinfal- 
libli ? I apprehend nof.. I suppose this Senate 
isabou"!is good authority, anil that the Con 
gress-fthe Unitfd States is, perhaps, pietty 
near as g od authority, as Mr. Ciishinir. Km, 
then, as "to this quesiii n of a quorum, the gen- 
tlemen s:y, that there was no quorum there, 
an! that .Judge Frazier ha I a right to i--bue his 
writ. Who is a .iud^e, as tn wnether there is 
a quorum in th L gislature.or no. ? The con- 
stitutioa reqisires 'h.ic two-thirds shall consti- 
tute a quorum Does itsiythat judges hae 
the powe to -ee that t^vo-tliirds are present? 
Who is to juitge whether there is a quorum, or 
not? Tne constitution says, that the Legisla- 
ture shall keep a. iourn^il, and that two thirls 
shall C'institute a quoritni. What do they keep 
a j >urnal tor? To have judges pry into their 
proceedings, and pronounce upon the validity 
or invalidity of the acts of the legislative body, 
prowling and mousing into their journals lo 
revise and supervise t lem? I apprehend not. 
The Legislature is directed by the constitution 
to keep a journal, and it is declared that 
the ayes and noes shall be cal.ed upon the 
passage of laws of a gemral nature. I 
admit thut 11 is the tluty of the S nate 
and House to keep a journal. I admit 
that it is the duty of the Senate and the 
House to do no business unless there is two- 
thirds there. So this Senate has acied, and so I 
appiehena the House his acted, but because' th^ 
<-ou-titution sa>s "you shall keep a journal and 
have a quorum of two thirds," does that ap- 
point the judiciary your guardian to see that 
you do it?" The journal is to be kept lor the 
public rye, and you are to do no business unless 
two-thirds are present. It is your dut3' to do 
this, and may you nut be relied upon to do it 
■without the guadii'iiship of a petty judge of a 
criminal court? Where is (he clause ia the 
constitution th it authorizes a judicial olllcer to 
prowl into the journals and pronounce upon 
the regu'ariy or irregularitj' of the proceed- 
ings of the General Assembly? Such a thing 
has never occurred in the history of legislation. 
But that s what they cl dm. They say that the 
judge may look into the journals, and if it 
cannot be shown that an act was passed, if it 



cannot be shown before some potty tribunal 
that the act was passed in a certain way, then I 
suppose he is to judge in regard to the Legisla- 
ture as to the law. Now, I ass*, rt, there is but 
one class of cases which the judclary can pro- 
noume upon. W!;e'C the act and the c 'nstitu- 
tion are produced, if the act is found to be in- 
consistent with the constitution, then, from 
necessity, the judge deciles in favor of ihe con- 
stitution. That i^ the class of cases in which 
the judiciary can interfere at all. Who is to 
determine the returns, the qualilicatiuns, the 
elections of members? The S naiors in the 
Senate, and the Kep esent, fives in the House. 
Gan the regular proceedings of either body be 
inquired iu!0 by the judieiary? if so, Ihe judi- 
ciary becomes a levising and supervising 
power. Now, I know that a case was read 
h re from Hill's lleports in New York, where 
they did lonk into the journal. It was a case 
whe''e a private bill, brobablv, had been passed. 
\ case was produced from Illinois, where they 
looked into the journal. A case was produced 
from California, where an iuquiry was m ide 
into the time of the sia-nature <if tlie governor. 
W^hat does that [irrive here? Is a law-suit 
gotteir up in New Y'ork between private ps^r- 
sons, or in Gali oniia, or lUinuis. tl:e State 
being no party whatever 'o it— is this a prece- 
dent binding upon us? They di cuie in Illinois 
that the c'-ur. may look into the journals, m 
California that they may look into the d;ite of 
the governor's signature. What do*s that 
prove? that in Tennessf e you may look into the 
journals? But, Mr President and Seuaturs, I 
ask it the Senate and Vlousc are not judges of 
their own rules and procC' dings, i apprehend 
tha'. they are the sole and supreme judg s. But 
who is to revise these proceedings? Ah! but 
^ou must get Judge Frazer to r^'vise ihem. 
Now, then, who is to revise and supervise him? 
Soni' body must be trusted, and I assert that 
contidenee can be placed no where better than 
in the Legislature, let us take that case, f)r 
instarc', of the Miners and Manufactureis' 
Bank, the ca-e given in the 3rd Sne d. [At 
the request of Mr. Tri nble, M jor .Moah here 
reail a lengthy extract from this case.] May it 
please the court, this has be&n read lo show that 
where it appears on record in ti e Supreme 
Court thatan act of the Legislature I as been 
obttiined by fraud, (for it does so appear m this 
case,) and the accusation is made that the ace 
was passed in this way, that, even then, the 
Supreme Court refuses to entertain jur sdic- 
tion. on the g ound fi at it v.'ouhl be improper 
to take jurisdiction of the case. Even when the 
lacts appeared bef re the court, they refused 
to take jurisdiction. Why, we had an attempt 
lately made to go into the ■■-upreme Court oi the 
United States to enjoin the officers of the Gov- 
ernment from proceed ng to carry out the laws 
passed bv Congress, to impede th^s great pro- 
gressive m veiuent of the age. Trat is like 
rdrs. Partington trying to keepoutthe Atlantic 
ocean with a map. Suppose the judciary arro- 
gates to Itself all the authority, all the powers 
of the Government, and assumes to take juris- 
diction of the manner in which acts are passed, 
by what authority does it do it? W^hut a beau- 
ti ul piece of Pharisaical authoriiy, what a 
beautiful example of egotism! They may raise 
the qut stiou upon any act that was passed in 
the General Assembly tliat it was passed by 
fraud. Why, what would that 1 ad to? The 
Ge eral Assembly meets and passes an act that 
is signed by the Speaker and goes to the world. 
Suppose some man takes e.xcei)ti<'n to this, now 
can one department ot the government invali- 
date its actioii? Now, what does that lead to? 
Again, an act is passed and is presumed to be 
the law of the land, and some one who is op- 
posed to it gets up and states that at one of its 
i-eatlings there was less than two-tnirds in the 
House. They raise a suit on it and i)iove on 
this doctrine, th^t they seek to establish that 



206 



there was less than two-thivils at anyone of the 
readings, and then the law becomi'S Voiil. That 
is absurd, if the court please. Why is the Su- 
■premi' Court required to keep its records, and 
the Chancery « «urt, and the Circuit Court? 
VVlio is to review the records of the Supreme 
Court"? Three judges are understood, it mav 
be, to sit upon ti:e lives and property of their 
fellow-citizens, they are required to keep a 
record, who is to revise it? Is not that a dan- 
gerous power to allow them to try vour life or 
my life withDut appeal? ^u|ip:»-e that record is 
wrong, who is to correct it? Why, if the judge 
m ikes an incorrect record corruptly, wilifull,» 
and wrongfully," he can be impeached 'ihese 
journals, 1 suppose, are required to be kept for 
ihe public. If the members of the Legistature 
do nut :ict in accordance with the view» of their 
constituents, they cm turn them out. But has 
it ever occurred in thi> country or England, 
that, the judiciiry has undertaken to revise the 
proeeeiiini:s of the Lcgistature? If such were 
the case, the presumption wou'd be that the 
jouruul Was wroni;, or that the printer had 
made a mistake. That is the spirit of this de- 
cision in 3d Snec'l. 

Mr. Ewini'. In those cases referred to by 
Mr. E,ast, it was shown tliat; if a law was not 
correctly passed, the journal could be looked 
into. 

Mr. Trimble proceeded. Mr East gave those 
authorities, the case in New York wliere the 
court (lid look into the journals, and the ca>e in 
Illinois. I appeal to this decision in 3rd 
Sneeil, to show that the Supreme Court rejected 
the declaration that the law was ohtained by 
fiaud, and in a plain case too. Judge Ca- 
ruthers says the case is made our, the law is 
pKissel, somebody gets the bencQt of it, but 
the court refus"S to take jurisdiction of the 
case. Now, if the court please, there is but one 
class of c:ASfS in which the court can pass 
upon the validity or invalidity of the acts of 
the General Assembly. If they can pass upon 
the acts of the Legislature, then they have a 
revising power, and the Legislature ceases to 
hi independent. When tliis vote was taken 
upon the amendment, the Speaker declared 
thut there was a quorum, but let us see how, 
according to your opinion, legislaiou could go 
on in this way. With fifty-six members you 
can do no business, that is their position, ac- 
cording to their opinion, any man may walk in, 
the executive may walk in, or a-iy punv jndv^e 
may send the sherilT there, may spit in their 
very faces, and if you can bribe or corrupt two 
or three members of the LegisVature, you may 
clog the whole wheels of government Why, 
th;it is worse than the docrri'e of secession— 
that one State can control thirty six. All that 
a facton has to do is, to corrupt four or live 
men and get them to slip O't. But this con- 
struction of the law suits the de-peration of 
your case. In a case which has already been 
referred to, a man was guilty of contempt of 
the Congress of the Unitetl States. Henry Clay 
was Speaker, tliere was a resolution introduced 
to arrest him Jor contempt, the Speaker issued 
his warrant, Anderson was arrested iind car- 
ried before the judge, where he was punished 
'ihese are the facts in the case of Anderson v. 
Dunn. Now, then the aggrieved party turns 
round and sues the other for damages for 
wrongful imprisonment. In that case, the plea 
is demurred to. and the question is raised, did 
the warrant of the Speaker justify the arresr.. 
[Mr. Kwing here said that the speaker had 
fallen into a mist die. In the case referred to, 
there was a competent nuornm, and when there 
was a competent quorum, of course no further 
inquiry could be made, and in the c.s; now 
before the House there was no coinpe'ent quo- 
rum, arid therefore the Speaker's warrant was 
void. J I alluded to this case to show that the 
warrant 01 the Speaker was sullicient for thf 
arrest ol Anderson, -th^; Supreme Court so he d; 



hut here was a resolution purporting to be 
passeil by the House of Representatives, direct- 
ing the arrest of tnese nien. Now, in the case 
that was tried before .Judge Frazer, Judge 
Harrison has been examined to prove all that 
transp red. He testified that no p oof was 
brought before the judge. To be ,'ure, a news- 
paper was read, but that was no proof. I state 
this to .show the ani iius of Judge Frazier, and 
his swiftness to deliver these men, in order to 
accomplish the object; they all had in viow. I 
say that the [jeition is conclusive on its face, 
that it is full of venom, that it sneers at the 
E.xecutive of the state who called this Legisla- 
ture together, and it proves the animus of the 
petition itself. Here was the return made 
by the Lagislatare showing that the House was 
in session. But .Judge Frazier said that these 
members behaved very badly, that they de- 
sei veil to lie on the rocks, yet ne did not go to 
these members and say, "go to your olaccs and 
do your duty," nor did Judge Gaut, or Ju'tge 
Biien, or Mr. Colyar; on i ne contrary, they 
said, "yon are doing right." On the contrary, 
Leltwick writes a letter to a member to get 
sick jNow, may it please the court, I don't 
know thtit I cin add anything to what I have 
Mud, this is simply a questi n of the pow rs of 
theLe.gislatnre, and the powersof thejudiciary. 
'1 his was a question for the consideration of the 
House alone. The judge issued an order to 
release the members hcM iu custody, he also 
issued iin oi'der to seize the executive of the 
House, thus Mounding them in their honor and 
their privileges. The Judge has chosen his own 
bed, if it is a hard one, let hdn sleep on it. We 
are oljliged to assume that every man is a free 
azent. lind to hoM hm responsible. But, may 
it please the eOurt, this case was not brought 
about by the House. The judiciary is the 
aggress've body. This issue has been made by 
Judjfe Frazier, and he mu>t take the < onse- 
quences. Yet nobody can have any personal 
leeling against Judge Frazier. He is proven to 
havki been a Union man, and a respectable 
judge. But Judge Frazier does not administer 
that sort of law in bis court. Though a man 
may be respectab'e, he does not let him off if lie 
is guilty of an offense; the law must be exe- 
cuted. I say, then, again, that this iS'^ue, which 
is being tried, involves the question of the 
rights and privileges of the House of Repre- 
sentatives ot the State ol T> nnes^ee. The de- 
cision in this case is to be a pree.edent lor all 
future time, so that no officer of the judiciary 
shall invade the rights and privileges of the 
State of Tennessee. 
The court then adjourned. 



MONDAY, JUNE 3d, 1867. 
The Senate met at the usual hour, eighteen 
members being present. Senator Thompson 
was prevented by indisposition from taking 
his seat in the court. The minutes having 
been read and approved, some discussion arose 
in regard to the further action of the court. 
It was decided that the court should sit with 
open doors, and that the articles ot impeach- 
ment should be read separately, and the vote 
taken thereon. 

The principal clerk then read, in open court, 
the lir.^t of the article of impeachment. 

The ayes and noes having been called, the 
vote stood as follows : 

Guilty 14 

Not Guilty i 

The second article of impeachment was here 
read by the clerk. 



207 



The roll being called, the vote stood the same 
as that piven on the preceding iirtide. 

The followiiig resolution -was then adopted as 
embodying the decision of the coiiit: 

"Whereas, The Senate of the '=t:ite of Ten- 
nessee, sitting as a flitrh Court of Impeachtnent, 
upon the triiilot Thomas ^ . Hrazifr, Judge oi 
ttie Criminal Court of Davidson County, and 
State of le:nessee, up^m Artic'es of Impeach- 
ment, ilulv preferred by the House of Jlepre- 
sent itivesof the General Assembls of the siate 
01 Tennessee, having duly neard the eiidiMice 
and arguments of Counsel thereon; and where- 
a*, havina: voted by ayes and noe-, u|ion the 
cinrges contain! d in the Articles of impeach 
ment, and two-thirds of sa'd S' naie having 
pronounced tne said Thorn is N. Krazier, rJudge 
as atoresaid, duly guilty thereof, as proviiitd 
in, and required by the Constitution ol tlie 
Stat(> of Teniie.-Sfe; therefore, 

"Be it resolred. (by tzco-thinix of the Senators 
iworn,) Th ic ihomas N. Fiuzier, Judiie of the 
c;riminal Court of the Counr, of D.ivilsoa, and 
St:it<i of Teiine>S'e, be removed from liis >ai I 
office as Judge of said Criminal Court of liaviil- 
son Cou' ty, jind be disqualified to fill an office 
hereafter "in the State of TenU' ssci', and that 
judgment b entered accordingly." 

As Senator Thompson was prevented by 
sickness from being present, a written opinion 



prepared by hlra was allowed to be entered on 
the record. He voted not guiltij, but his vote 
did not change the res It. 

The President of the court then iiroceeded 
to deliver the judgment of the court in the 
lollowing terms: 

"The Hon. Thomas N. Frazier. having been 
found guilry, as charged in the Articles of Im- 
peichment. it is, i here ore, ordered, ad j\idired 
^.nd Uecreed. bv this High Court of Impeach- 
ment, tliat the. said Th iiias N. Ifrazief, Judge 
ol tlr • Ciimiual ( ourt of Uavidsuu County, in 
the State of Tennessue, he, and he is h«'reby, 
iiedaied, (according to the Cor stimtion of the 
Siate an i tii<» vote of this body, Conslitu- 
t onallv i)a sed,) to be temoved from his said 
office of Judire, as aforesaid, and also, disijuali- 
Hed from holding any office hereafter, m this 
stale." 

The Senate shortly after adjourned to meet 
again in evening ses ion, in order to attend to 
some incidental matters. These being duly 
disposed of, a furtlier adjourumout took place 
to Tuesday morning at nine o'vlock; when, 
after a short session, the court adjourned 
tine die. 



^0^9 



